Citation Nr: 21000859 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-08 490 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 2008, to September 28, 2018, is granted. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for prostate cancer is denied. The application to reopen a claim for compensation benefits for additional disability under the provisions of 38 U.S.C. § 1151, relating to treatment at a Department of Veterans Affairs facility in 1999 is denied. The application to reopen a claim for entitlement to service connection for colon cancer, also claimed as intestinal cancer, is denied. FINDINGS OF FACT 1. From May 1, 2008, to September 28, 2018, the Veteran’s service-connected PTSD rendered him unable to secure and follow substantially gainful employment. 2. For the entire appeal period, the Veteran’s PTSD was manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 3. The Veteran has not had prostate cancer during the pendency of the appeal. 4. In a December 2001 rating decision, the Agency of Original Jurisdiction (AOJ) denied compensation for additional disability under the provisions of 38 U.S.C. § 1151. 5. The Veteran initiated but did not perfect an appeal following issuance of an August 2003 statement of the case. 6. Additional evidence was not received within 60 days of the August 2003 statement of the case. 7. Evidence added to the record since the final December 2001 rating decision is cumulative or redundant of the evidence of record at the time of the prior, final denial and does not raise a reasonable possibility of substantiating the Veteran’s claim for additional disability under the provisions of 38 U.S.C. § 1151. 8. In a December 2001 rating decision, the AOJ denied service connection for colon cancer as due to herbicide agent exposure. 9. Additional evidence was received during the one-year appeal period following the December 2001 rating decision. 10. Evidence added to the record since the final December 2001 rating decision is cumulative or redundant of the evidence of record at the time of the prior, final denial and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection for colon cancer. CONCLUSIONS OF LAW 1. From May 1, 2008, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The December 2001 rating decision that denied compensation for additional disability under the provisions of 38 U.S.C. § 1151, and service connection for colon cancer as due to herbicide agent exposure is final. 38 U.S.C. §§ 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 5. New and material evidence has not been received for the claim of additional disability compensation under the provisions of 38 U.S.C. § 1151. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. New and material evidence has not been received for the claim of entitlement to service connection for colon cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1968 to January 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2008, July 2009, and May 2014 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran provided testimony at a Travel Board hearing. A transcript of the hearing is of record. The Veterans Law Judge who held the hearing has since left the Board. The Veteran declined another opportunity to testify before a different Veterans Law Judge. See October 2020 Correspondence. The Board remanded the appeal in January 2018 for VA medical records and VA examinations to be obtained. In a May 2020 rating decision, the RO granted a TDIU from September 29, 2018. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 2008, to September 28, 2018, is granted. The Veteran contends that he is unable to work due to his service-connected disabilities. Specifically, he alleges that complications from his PTSD alone renders him unemployable. The Board notes that the Veteran’s claim for a TDIU was originally raised in connection with a claim for an increased rating for his service-connected PTSD. Therefore, the claim for a TDIU is part and parcel to the PTSD claim and extends for the entire period on appeal from the date of his increased evaluation, effective May 1, 2008. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran’s representative contends that a TDIU should be assigned from May 1, 2008. See October 2020 Appellate Brief. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the disability ratings assigned for his or her service-connected disabilities met certain thresholds. 38 C.F.R. § 4.16(a). By virtue of the November 2008 decision on appeal, the Veteran is in receipt of service connection PTSD, evaluated as 70 percent disabling from May 1, 2008. See 38 C.F.R. § 4.16(a). Accordingly, the Board turns to the second aspect of TDIU: whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). Pertinent to the Veteran’s educational history, he has one year of education at the college level and a high school diploma. Turning to his work history, he worked as a home health aide salesman and had interaction with clients over the phone but did not provide health services. See May 2013 Application for Increased Compensation Based on Unemployability. Central to his claim for a TDIU, the Veteran testified before a different Veterans Law Judge that his behavior towards clients resulted in him not being requested for appointments and that his symptoms of PTSD interfered with his ability to perform his work. Here, the Board finds that the Veteran was rendered unable to secure and follow substantially gainful employment due solely to PTSD. Importantly, the Veteran testified that his interpersonal and social skills diminished greatly as his PTSD symptoms increased in 2008, and this resulted in behavioral problems in his employment as a home health aide salesman. See May 2017 Hearing Transcript. Through his testimony, the Veteran asserted that his PTSD symptoms result in a communication deficit, which is consistent with findings from the VA examinations indicating his speech was intermittently illogical, obscure, or irrelevant and circumstantial, circumlocutory, or stereotyped. The Board finds this assertion consistent with the hearing transcript as well as the VA examinations. The Veteran filed a claim for an increased evaluation in July 2008 and he reported to the VA examiner he experienced an increase in his symptoms in 2008, culminating in a suicide attempt. See September 2008 Examination. The Veteran was noted to have behavioral and social changes related to PTSD that resulted in ongoing familial discord and poor interpersonal relationships, chronic sleep impairment, withdrawal, and persistent suicidal ideation. The Veteran reported at this examination that his physical health and mental health precipitously declined after losing his employment. The examiner noted the Veteran was morbidly obese and had to delay hernia repair in 2002 in order to reduce his weight for surgery, the Veteran also reported that he needed another surgery that must be delayed for the same reason at the time of the September 2008 examination. The Veteran reported ongoing conflict at home with his family and that he had participated in counseling sessions. The Veteran was noted to tell lengthy stories that were at time tangential and rambling and disliked being interrupted. The examiner noted the Veteran had a prior in-service suicide attempt and the more recent attempt. The examiner noted the Veteran’s inconsistent reports regarding the sufficiency of this medications to control his symptoms and found that the inconsistencies in his reports indicated that prior determinations regarding the presence of mild or transient symptoms was accurate. The Veteran was next examined in May 2013 and the report indicates the presence of depressed mood, anxiety, panic attacks that occur weekly or less often, disturbances of mood and motivations, chronic sleep impairment, and suicidal ideation. See May 2013 Examination. The examiner opined that the Veteran’s PTSD would not cause individual unemployability by itself, but that his PTSD was intertwined with his physical impairments and his history of depressed mood and alcoholism. The examiner noted the Veteran had a prior history of CVA, without residual, surgically repaired incarcerated ventral hernia, bilateral knee disability, colon cancer that was resolved, deep venous thrombosis, and morbid obesity. The examiner opined the Veteran’s nonservice-connected disabilities rendered him disabled, but that he would be able to perform his prior work as a telemarketer from home, if possible. The Board finds this is an assessment that the Veteran would only be capable of sedentary work at home due to nonservice-connected disabilities. The examiner opined the Veteran manifested an occupational impairment with only an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Veteran was next examined in September 2015 and he was found to have an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See September 2015 Examination. The Veteran denied suicidal ideation and reported symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, and disturbances in mood and motivation. The Veteran was also noted to have circumstantial, circumlocutory, or stereotyped speech and his speech was intermittently illogical, obscure, or irrelevant. The examiner noted the Veteran frequently perseverated on discussing issues unrelated to the examination, although the Veteran was oriented in all spheres. The Veteran’s insight was fair to poor with fair judgement. The Veteran was most recently examined in September 2018 and he was noted to have attempted suicide three months prior. See September 2018 Examination. Importantly, the Veteran reported that he was hospitalized for one month at the Lebanon VA Medical Center. The record from this facility shows the Veteran was admitted for in-patient mental health treatment on May 23rd, 2018 and left against medical advice on May 25, 2018. At discharge the Veteran reported passive suicidal ideation with no intent or plans. Medical records from his admission show the Veteran made suicidal statements in group therapy and was escorted to the emergency department. See May 2018 Medical Record. The Veteran was noted to have an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran reported that he stays in his basement, has no friends, does not go out frequently, and makes dog safety collars. He also volunteered twice a week at the Lebanon VAMC. The Veteran was noted to have a chronic sleep impairment, mild memory loss, flattened affect, speech was intermittently illogical, obscure, or irrelevant, neglect of personal appearance and hygiene, and impaired impulse control, such as unprovoked irritability with periods of violence. Here, the Board finds the Veteran’s assertion that he had a suicide attempt and was hospitalized for one month is contradicted by the medical record. If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In light of the Veteran’s inconsistent statements, the Board attributes less probative value to his assertion of recent suicide attempt. Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that his service-connected PTSD has rendered him unable to secure and follow substantially gainful employment since May 1, 2008. Although there is evidence his significant nonservice-connected disabilities may be capable of rendering him unemployable, the impact from his PTSD on his ability to work and his educational and work history must still be considered in determining if TDIU is warranted throughout the appeal period. The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). While the Veteran’s symptoms have fluctuated over the long appeal period, the record of evidence indicates the presence of depressive symptoms and a communication deficit from May 1, 200 that would preclude his past relevant work as a telephone salesperson. Furthermore, given his limited educational and employment history and significant deficits in mood and communication, the Board finds that he is rendered unemployable as of May 1, 2008 because his PTSD would have prevented him from obtaining other work for which he would have been qualified. In this regard, although the examiners opined that the Veteran’s PTSD alone would not preclude employment, the Veteran’s low motivation and communication and mood deficits would make securing such employment at least very difficult, if not impossible. Thus, based on the foregoing and resolving all doubt in the Veteran’s favor, the Board finds that his service-connected disabilities prevented him from securing or following a substantially gainful employment since May 1, 2008. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Therefore, entitlement to a TDIU as of such date is warranted. 2. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. The Veteran contends that the symptoms of his PTSD cause more social and occupational impairment than is reflected by his currently assigned disability rating. He is assigned a 70 percent evaluation from May 1, 2008. The Veteran asserts that his disability worsened when he lost his employment in May 2008. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38U.S.C. §1155; 38C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38C.F.R. §4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38C.F.R. §4.2. All reasonable doubt will be resolved in the claimant’s favor. 38C.F.R. §4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38C.F.R. §4.7. The appeal period before the Board for the Veteran’s PTSD claim begins on July 3, 2008, the date VA received his claim for an increased rating, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The RO assigned a 70 percent evaluation effective May 1, 2008 under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38C.F.R. §4.130. Under such DC, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evaluation under 38C.F.R. §4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38C.F.R. §4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38C.F.R. §4.126(a). As discussed above, the Veteran has reported throughout the appellate period instances of suicidal ideation and has a history of suicide attempts. While the Veteran reported a suicide attempt three months prior to the September 2018 examination for which he was hospitalized, the Board discussed above how this assertion is not afforded probative value based on inconsistency with the VA medical record. Here, the Board finds that the Veteran has not demonstrated a persistent danger of harming himself or others, but he does have a history of suicidal ideation and suicide attempt. However, the record indicates he is motivated to spend time with his family and has interest in activities in and outside of the home, demonstrating less of an impairment than necessary for a finding of him being a persistent danger of hurting self or others. Turning to the Veteran’s occupational impairment during the period on appeal, the Veteran was not employed for the entire appeal period. Further, by virtue of this decision, the Veteran is in receipt of a total disability rating based on individual unemployability for the entire appeal period, based solely on the Veteran’s impairment from PTSD. The Board emphasizes that individual unemployability is assigned where a total schedular rating is not warranted but the veteran is nonetheless unable to obtain or retain substantially gainful employment and the question of social impairment is not resolved by the finding of individual unemployability. The Veteran has presented with symptoms of depressed mood, suicidal ideation, chronic sleep impairment, mild memory loss, flattened affect, speech intermittently illogical, obscure, or irrelevant, neglect of personal appearance and hygiene, and impaired impulse control, such as unprovoked irritability with periods of violence. The Board finds his symptoms of PTSD precludes his ability to obtain and maintain employment. However, the Board finds the Veteran does not manifest a total occupation impairment as he reported that he makes safety collars for dogs and volunteers at this local VA. See September 2018 Examination. This activity indicates some ability to perform limited occupational tasks. In regard to his social impairment, the Veteran reported he has remained married to his spouse for many years and that his relationship had improved over the course of the appeal period. The record is clear that the Veteran’s social function is limited. As noted above, the Veteran, although preferring to spend most of his time isolated, was involved a volunteer at his local VA, indicating some occupational and social function, although much less than required for substantially gainful employment. Thus, although the Board notes his PTSD would impair his social function, such impairment could not be considered total given the evidence of interpersonal relationships and activities. Based on the foregoing, the Board finds that the Veteran’s PTSD symptomatology resulted in, at most, occupational and social impairment with deficiencies in most areas for the entire appeal period, thus warranting no higher than the currently assigned 70 percent rating; based on symptoms that include, but are not limited to, depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, mild memory loss (such as forgetting names, directions, or recent events) difficulty understanding complex commands, near-continuous panic or depression, chronic sleep impairment, disturbance in motivation and mood, difficulty establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances. The Veteran’s reported and documented symptoms fall within multiple ratings under the General Rating Formula, however, no symptoms either reported or clinically documented fall under the criteria for a 100 percent rating. In this regard, the Board notes that the Veteran reported lapses of maintenance of personal hygiene do not amount to “an intermittent inability to perform activities of daily living” as required under the ratings criteria. As discussed above, he does not present a persistent danger of hurting self or others. His thought processes and judgement did not indicate gross impairments, and he was always oriented in three spheres. While he has a significant communication and mood deficit that prevents him from obtaining and maintaining employment, he does not have grossly inappropriate behavior. The presence of a single enumerated symptom present in the ratings criteria, or a specific constellation of symptoms, does not necessitate a particular rating. Notably, the converse is also true, in that the lack of a specific symptom or symptoms does not automatically preclude the assignment of a higher rating. Rather, the record and disability picture as a whole is contemplated, and the Veteran is assigned a disability rating commensurate with his occupational and social function. Consequently, given the frequency, nature, and duration of the Veteran’s symptoms, the Board finds that they result in occupational and social impairment with deficiencies in most areas; however, they are not productive of impairment more closely approximated by total impairment as contemplated by a 100 percent rating and therefore, a 100 percent rating is not warranted. See Vazquez-Claudio, 713 F.3d at 114. The Board is aware that the symptoms listed under the 100 percent rating are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 100 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the Board finds that the preponderance of the evidence, including the Veteran’s statements, shows that the Veteran’s PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. In reaching such determination, the Board acknowledges the Veteran’s sincerely held belief that the severity of his symptoms warrants a higher disability rating. However, as such is not manifested by symptoms of a nature, severity, frequency, or duration contemplated by a 100 percent at any point during the appeal period and does not result in more severe manifestations that more nearly approximate total occupational and social impairment, a rating in excess of 70 percent is not warranted. The Board has also considered whether additional staged ratings are appropriate for the Veteran’s service-connected PTSD; however, the Board finds that his psychiatric symptomatology, while waxing and waning, has been relatively stable throughout the period on appeal. In reaching this decision, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against a rating in excess of 70 percent for PTSD. As such, that doctrine is not applicable to such aspect of his appeal, and a higher rating must be denied. See 38U.S.C. §5107; 38C.F.R. §§4.3, 4.7. 3. Entitlement to service connection for prostate cancer is denied. The Veteran contends that he developed prostate cancer as a result of his exposure to herbicides in-service. However, as explained below, the Veteran does not have a current prostate cancer disability for which service connection can be granted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2014) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). As the Veteran served in Vietnam, exposure to herbicides is conceded. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. The list of the diseases that are related to herbicide agent exposure includes prostate cancer. 38 C.F.R. § 3.309(e). The Veteran’s May 2014 notice of disagreement asserts that he has been diagnosed with prostate cancer. However, the medical evidence is against his assertions. Service treatment records do not contain any complaints, treatment, findings or diagnoses of prostate cancer. Post-service private treatment records show that the Veteran has been diagnosed with colon cancer; however, there are no complaints, findings, treatment, or diagnoses with respect to cancer of the prostate. To the extent the Veteran, himself, claims he has prostate cancer, a lay person is competent to establish a diagnosis in the following circumstances: (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1372, 1376-77 (Fed. Cir. 2007). In this case, the diagnosis of prostate cancer is a complex finding that goes beyond the mere observation of symptoms by a lay person--in other words, the clinical pathology of cancer disorders is not readily recognizable by a layperson, such as varicose veins or acne. The Veteran’s assertions that he was told by a medical professional that he had prostate cancer in 2013 are competent evidence; however, they are not credible. A March 2014 VA examination was conducted in which the Veteran reported a diagnosis in May 2013. The examiner noted that the Veteran appears that to have misunderstood because the medical notes at that time do not reflect a diagnosis. In July 2014, the Veteran attempted to have his prostate removed during a hernia surgery. A July 30, 2014, note indicates that the Veteran reported that his prostate was “pre-cancerous.” The Veteran was informed his prior test was within normal limits with new tests still pending. An August 2014 note indicates that the prostate would not be removed unless order by the Urology service. The Veteran underwent diagnostic testing in August 2017 and August 2018 that showed normal results. See August 2017 VA Physician Letter; August 2018 Medical Record. A November 2017 VA treatment note indicates the Veteran had a normal prostate on clinical examination. Thus, the best evidence is that the Veteran misunderstood what he was told in May 2013. Thus, the lay evidence here does not establish current disability in this case. Accordingly, after review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran has a current prostate cancer diagnosis. In this regard, the threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. The Board finds the preponderance of the evidence dated during the appeal period shows that the Veteran has never had prostate cancer. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, in the absence of evidence of diagnosed prostate cancer, the preponderance of evidence is against service connection and the claim is denied. 38 U.S.C. § 5107(b). 4. The application to reopen a claim for compensation benefits for additional disability under the provisions of 38 U.S.C. § 1151, relating to treatment at a Department of Veterans Affairs facility in 1999 is denied. In January 2001, the Veteran filed a claim for compensation benefits for additional disability under the provisions of 38 U.S.C. § 1151, relating to treatment at a Department of Veterans Affairs facility in 1999. See January 2001 Fax Cover Sheet. The Veteran asserted that he had infection and fever from his surgical wound dehiscence. See February 2000 Request. The Veteran had previously discussed treatment from VA that occurred in November 1999 in a February 2000 statement. See February 2001 Statement. This claim was denied in December 2001. The Veteran initiated an appeal by filing an April 2002 Notice of Disagreement. The RO issued an August 2003 Statement of the Case (SOC) which continued the denial. The Veteran did not perfect his appeal within 60 days of the SOC. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). A claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156 (b) to determine the character of evidence submitted within the one-year appeal period following issuance of a rating decision. Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). VA then has an obligation to decide whether the evidence received is new and material to allow finality to attach. Id. VA medical records generated in the one-year period following a rating decision are constructively received by the adjudicator. See Lang v. Wilkie, 971 F.3d 1348, 1355 (2020). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). Under the provisions of 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability which is not the result of the veteran’s own willful misconduct or failure to follow instructions, disability compensation may be awarded for a “qualifying additional disability” in the same manner as if the additional disability were service connected. See 38 C.F.R. §§ 3.361, 3.800(a). To determine whether an additional disability was caused by medical treatment, VA compares the veteran’s condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(b), (c). At the time of the December 2001 decision, the evidentiary record contained the Veteran’s STRs and VA treatment records showing the Veteran manifested colon carcinoma and underwent left hemicolectomy on November 9, 1999, with follow-up treatment in November 1999 for surgical site bleeding. After removal of the sutures on November 29, 1999, the Veteran experienced a dehiscence event and underwent emergency wound closure and prophylaxis on December 2, 1999. The Veteran was noted to have left against medical advice on December 6, 1999 and was readmitted on December 8, 1999. The Veteran then left again against medical advice on December 12, 1999. He was examined on December 14, 1999 and found to have midline wound healing with a small amount of brown serous discharge from the wound site. The wound site culture indicated the presence of MRSA, the Veteran was placed on a triple anti-biotic and discharged home. See December 1999 Medical Record. The Veteran was contacted by telephone on December 28, 1999 and reported no complaints. The Veteran was examined on February 2000 and was found to have an intact incision that was markedly improved and no longer a problem at this time. See February 2000 Medical Record. The Veteran’s incision was noted to be healed and he was eating and stooling without complaint in March 2000. See March 2000 Medical Record. Also of record was an April 2001 discussion of the Veteran’s history of ventral hernia repair, with two repairs in the 1990’s. See April 2001 Medical Record. The Veteran presented with an abdominal hernia but was noted to be obese and that it was a contraindication for hernia repair to have a high instance of recurrence. Based on the foregoing evidence, the AOJ denied service connection in December 2001 for additional disability based on a lack of evidence showing the Veteran (1) suffered additional disability (2) that was the result of VA medical or surgical treatment, hospitalization, or examination. The Veteran was notified of the AOJ’s determination, and he initiate an appeal, but he did not perfect the appeal following issuance of a Statement of the Case. During the one-year period following the RO’s denial, the RO obtained additional treatment notes regarding the Veteran’s departure from hospitalization against medical advice. See April 2002 Memorandum; see also May 2002 Medical Records. As noted, these records were considered in the August 2003 SOC. In April 2009, the Veteran filed an application to reopen his claim for additional disability due to his left hemicolectomy in November 1999. Because the Veteran is, again, seeking to establish compensation under 38 U.S.C. § 1151 for additional disability as a result of VA medical or surgical treatment, hospitalization, or examination, new and material evidence is required in order for the Board to consider the substantive merits of the claim for service connection. See 38 C.F.R. § 3.156(a). The evidence associated with the record since the December 2001 rating decision consists of VA treatment records dated which note his history of colon cancer status post hemicolectomy. While the VA treatment records are new, in that they were not of record at the time of the prior, final decision, they are duplicative of the evidence of record already of record, as they note the Veteran’s history of colon cancer and surgical history. The Veteran’s statements since the December 2001 decision, including his May 2017 hearing testimony, amount to lay assertions that his left hemicolectomy surgery resulted in additional disability, such as recurrent hernia and dehiscence. See May 2017 Hearing Transcript. Specifically, the Veteran testified it was his belief that he incurred dehiscence and subsequent hernia because a surgical mesh was not implanted following his November 1999 left hemicolectomy, requiring additional surgeries to correct. He also asserted that he had to have surgery due a severe “staff” infection while hospitalized. October 2013 Brief in Support. The MRSA infection is recorded in his records as discussed above, but this infection was known in the record at the time of the prior denial and no new, competent evidence regarding the MRSA infection has been received. While the Veteran is competent to report his symptoms, whether a mesh should have been inserted during his surgery is not the type of issue about which a lay person can provide competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has laid no foundation for this assertion. Thus, the Veteran’s assertions are not sufficient to reopen the claim because, as a lay person, he is not competent to offer an opinion that requires medical expertise, and consequently the statements do not constitute new and material evidence to reopen the claim. Moray v. Brown, 5 Vet. App. 211 (1995). As to the Veteran’s assertions regarding his recurrent hernia medical history, he has not submitted competent lay or medical evidence that indicates that the November 1999 treatment and follow-up care was negligent or that he has an additional disability due to this care. He has provided additional assertions regarding which disabilities and complications he believes are due to his November 1999 surgery and follow-up care, but his generalized assertions are not competent evidence relating to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds new and material evidence has not been received and, thus, the claim for entitlement to compensation benefits for additional disability under the provisions of 38 U.S.C. § 1151, relating to treatment at a Department of Veterans Affairs facility in 1999 may not be reopened. 5. The application to reopen a claim for entitlement to service connection for colon cancer, also claimed as intestinal cancer, is denied. In this instance, the Board finds the Veteran has variously referred to the same disability under different names, but he has not manifested a cancer disability aside from carcinoma of the colon. See August 2019 Medical Record. The Veteran’s claim for colon cancer was initially denied in February 2000. The RO considered his conceded herbicide agent exposure but found that colon cancer is not presumptively linked with herbicide agent exposure. At that time, the evidentiary record also contained the Veteran’s STRs, and VA treatment records, and his lay assertions. The RO continued the denial in May 2000. Under the provisions of the Veterans Claims Assistance Act, the RO reopened this claim and denied it on the merits in December 2001, finding that the claim had been reopened but that there was no evidence of a relationship between his demonstrated colon cancer and his conceded herbicide agent exposure. The Veteran was notified of the AOJ’s determination, but he did not initiate an appeal. The Veteran had extensive treatment through VA in the year following issuance of the December 2001 rating decision, including a January 2002 hospitalization. The RO did not consider whether these records were new and material as to the colon cancer claim at that time. See 38 C.F.R. § 3.156(b). Therefore, the December 2001 rating decision did not become final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, these VA treatment records do not pertain to whether his colon cancer is related to in-service herbicide agent exposure. Thus, they are not material and the claim cannot be reopened on this basis. In April 2009, the Veteran filed a new claim seeking service connection for colon cancer as due to herbicide agent exposure. Because the Veteran is, again, seeking to establish service connection for a colon cancer disability as due to herbicide agent exposure, new and material evidence is required in order for the Board to consider the substantive merits of the claim for service connection. See 38 C.F.R. § 3.156(a). The evidence associated with the record since the December 2001 rating decision consists of VA treatment records dated which note his history of colon cancer status post hemicolectomy. While the VA treatment records are new, in that they were not of record at the time of the prior, final decision, they are duplicative of the evidence of record already of record, as they note the Veteran’s history of colon cancer and surgical history. The VA treatment records do not, however, contain any indication that his colon cancer may be related to his active service. Indeed, the treatment records do not tend to prove a previously unestablished fact necessary to substantiate the underlying claims or raise a reasonable possibility of substantiating the claim. The Veteran’s statements since the December 2001 decision, including his May 2017 hearing testimony, amount to lay assertions that herbicide agent exposure caused his colon cancer. These assertions were previously before the RO. As noted by the RO, colon cancer is not presumptively linked to herbicide agent exposure and the Veteran has not provided any competent lay or medical evidence that his claimed disability is due to his service. At his May 2017 Board hearing, the Veteran testified that he first sought treatment for his colon cancer in 1971 at the Loma Linda, California, VA Medical Center. Evidence is generally presumed credible for the purpose of determining whether reopening is warranted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, if the newly submitted evidence is inherently false or untrue, the presumption does not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The Board finds the Veteran’s testimony on this point is inherently false. When he filed his original claim for compensation, he submitted a February 2000 statement describing, in particular detail, that he was first diagnosed with cancer in October 1999 at the Lebanon, Pennsylvania, VA Medical Center and his surgeries in November 1999 from which his 38 U.S.C. § 1151 claim springs. Despite an extensive record, the Veteran has never otherwise indicated that he was treated for colon or intestinal cancer before 1999 or at the Loma Linda VA Medical Center, despite more than twenty years of seeking benefits for it. The Board finds that the Veteran was simply mistaken. Because the testimony is inherently false, the Board concludes that reopening is not warranted on this basis either. Duran, 7 Vet. App. at 220. Therefore, the Board finds new and material evidence has not been received and, thus, concludes the claims of entitlement to service connection for colon cancer, also claimed as intestinal cancer, may not be reopened. 38 C.F.R. § 3.156(a). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.