This document is my FIRST failed attempt in the years 2003-2008 to get the VA to acknowledge my various non-cancerous tumors, fibromyalgia, and peripheral neuropathy without an attorney. I had been represented by the VFW in Milwaukee, Wisconsin which was my biggest mistake as the person at the VFW did not care. He was eventually fired for viewing porn on work time instead of attending to his work on veteran cases.
Hopefully, reading this case history will help other veterans in my situation from not making the same mistakes I did.
I eventually was able to re-open and win my case as I found, in my military medical records, the start of my medical problems on record. This single medical record was essential and should have been found during my first case by me and the VA. Do not count on the VA to look for your medical record as mine was clearly in view and missed by me and the VA. The attorney I hired was also the key to success in the second VA claim.
Things I did wrong in the first case;
1. I missed my own military service medical record which was the start of my medical fibromyalgia.
2. I claimed non cancerous tumors which is not a VA disability. If the tumors do not affect your daily life they are not viewed by the VA as a problem. Although, to me it indicated exposure to the chemicals around the Titan II Missiles.
3. The first Mayo clinic neurologists said it was likely small fiber neuropathy but never followed up on it. This was a mistake by me not hiring an experienced VA case attorney guiding my case.
4. Toxicologists are not helpful in cases with the VA as they are not regarded as an MD and their opinion is discarded by the VA. This disregard for a toxicologist opinion is disgraceful by the VA.
5. You must have the statement from the MD doctors that say, “More likely than not your medical condition was related to your exposure to a certain toxic chemical you worked around in your job”. Without this MD doctor statement you will beat your head on the wall. Remember, the doctor must realize when you give him the ASTDR or other medical research documents that say your medical condition is possible from the chemical you were exposed to in the service, that their opinion has to be better than a 50% probability your medical issues are related. They do not have to say 50% in their statement they just have to be told that is the criteria for their opinion.
6. Have this statement written before your appointment with the physician. A letter from your attorney explaining this instead of you is more helpful than just your own statement. Physicians are leery also of being dragged into a legal battle. Your attorney must be clear in their letter to the physician that they will not have to testify in court.
7. Remember to seek an attorney with VA case experience. Their fee is 20% of the back pay judgment. They are invaluable to win your case. I spun my wheels for five years and gained nothing but gray hair the first time.
As you will see in the record below the VA takes its Physicians word as gospel and they do not have to show any evidence as to how they arrived at their decision. The VA is allowed to use physicians who are in no way trained in statistics of different types of tumors. The chief of endocrinology, at my VA, did not even know the statistics of the different types of adrenal tumors like atypical non fatty verses typical fatty . He of course took the overall statistics of just typical fatty adrenal tumors and not my specific non-fatty type which could not be distinguished from cancer using MRI with contrast washout techniques.
On appeal from the Department of Veterans Affairs (VA) Regional Office (RO)in Milwaukee, Wisconsin
THE ISSUES
1. Entitlement to service connection for adrenal carcinoma, claimed as due to exposure to toxic chemicals in service.
2. Entitlement to service connection for a neurological disorder manifested by foot pain and numbness, claimed as due to exposure to toxic chemicals in service.
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. H. Nilon, Counsel
INTRODUCTION
The veteran had active military service from October 1975 to August 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 RO rating decision.
In September 2008 the veteran testified before the undersigned Veterans Law Judge in a hearing at the RO when he submitted additional documents along with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2008).
FINDINGS OF FACT
1. All notification and development action necessary to fairly adjudicate the issues on appeal has been accomplished.
2. The veteran was exposed during his military service to toxic chemicals including hydrazine, unsymmetrical dimethylhydrazine (UDMH), monomethylhydrazine (MMH), N-
Nitrosodimethylamine (NDMA) and nitrogen tetroxide, all of which are suspected carcinogens.
3. The veteran is competently diagnosed with a benign adrenal adenoma; he does not have a diagnosed neurological disorder of the feet.
4. Competent medical opinion of record does not show the veteran's adrenal adenoma is likely due to exposure to toxins during service.
CONCLUSIONS OF LAW
1. The veteran does not have a disability manifested by adrenal carcinoma that is due to or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008).
2. The veteran does not have a neurological disorder manifested by foot pain and numbness that is due to or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2003).
VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished.
In March 2004 the RO sent the veteran a letter advising him that to establish entitlement to service connection for a disability the evidence must show a current disability, an injury or disease in service, and a relationship between the claimed disability and military service. The veteran had an opportunity to respond prior to issuance of the rating decision in July 2004.
The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim for service connection and that he has been afforded ample opportunity to submit such information and evidence.
The Board also finds that letter cited above satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).
The letter advised the veteran that VA is responsible for getting relevant records from any Federal agency (including military, VA and Social Security records) and that VA would make reasonable efforts to obtain records on the veteran's behalf from non-Federal entities (including private hospitals, state and local governments, and employers) if provided appropriate authorization to do so.
It also advised the veteran of the types of evidence acceptable. The letter specifically advised the veteran, "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us."
Proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. 38 C.F.R. § 3.159(b)(1). As explained, all three content-of-notice requirements have been met in this appeal.
In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant.
As indicated, in the matters now before the Board, documents meeting the VCAA's notice requirements in regard to the rating issues were provided to the veteran before the rating action on appeal. However, the Board finds that any arguable delay in providing full VCAA notice prior to the rating decision was not prejudicial to the veteran.
The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
The Board finds that, in this appeal, any arguable delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim has been fully developed before the case was readjudicated as reflected in the most recent Supplemental Statement of the Case (SSOC) issued in May 2007.
As indicated, the RO gave the veteran notice of what was required to substantiate the claims on appeal, and the veteran has been afforded ample opportunity to submit such information and/or evidence.
Neither in response to the letter cited hereinabove nor at any other point during the pendency of this appeal has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below-that needs to be obtained prior to appellate review.
Hence, the Board finds that any arguable failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006).
More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that VA notice must include information regarding the how VA establishes disability ratings and the effective date that may be assigned. This was accomplished in an RO letter in March 2006. There is accordingly no possibility of prejudice under the notice requirements of Dingess.
The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claims on appeal.
The veteran's service treatment record (STR) and post-service VA and non-VA medical records have been associated with the claims file. The veteran has not identified, and the file does not otherwise indicate, that there are any other medical providers having records that should be obtained before the claims are adjudicated.
The veteran contends that VCAA requires VA to obtain a formal Titan II Safety Report, which the veteran asserts was released in February 1981in response to a request by the Senate Armed Services Committee and relates to hazards associated with the Titan II missile system. However, the report appears to be classified and is thus not available to VA. Further, the fact that Titan II missile fuel contained toxins is not in dispute by VA, so obtaining the report would not be of any foreseeable benefit to the veteran's claims. Remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
The file contains reports of VA clinical history and physical (H&P) examinations in April 2004 and in August 2006. The file was submitted for review and nexus opinion by a VA neurologist in April 2006 and by a VA endocrinologist in May 2007. The Board has found these examinations and resultant medical opinions to be adequate and sufficient as a basis for adjudication of the claims for service connection.
The veteran contends that he should be examined by a toxicologist because he asserts that an endocrinologist not competent to opine on the issue. However, careful review of the endocrinologist's opinion shows that the review was conducted by a competent physician (Chief of Endocrine Staff) who cited relevant medical studies. There is no indication in the file that the VA endocrinologist was not competent to articulate an opinion in regard to the issue referred.
There is accordingly no need for remand for further examination at this point. 38 C.F.R. § 3.159(c)(4).
The veteran has also been afforded a hearing before the Board at which he presented argument in support of his claim.
Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims for service connection on appeal before the Board.
II. Analysis
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.
Service connection may 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).
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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
In this case, the veteran is claiming service connection for adrenal carcinoma and for a neurological disorder manifested by foot pain and numbness. He asserts that both claimed disorders became manifest many years after discharge, but were both proximately caused by exposure to toxic chemicals in Titan II missile fuel.
Injury or event during military service
The veteran's DD Form 214 shows that he was a Missile Facilities Specialist assigned to the Strategic Air Command, and he is referred to in STR as a "missile crewman." The Board accordingly accepts that the veteran worked in close proximity to the Titan II missile as he contends.
The veteran has also presented numerous internet articles and other evidence tending to show that the Titan II missile was prone to leakage of fuel and other vapors, and that the system was phased out at least in part due to safety concerns.
The Board accordingly accepts that the veteran's military duties exposed him to vapors from missile fuel.
Finally, the veteran has submitted various articles showing that Titan II missile fuel contained chemicals including hydrazine and unsymmetrical dimethylhydrazine (UDMH), monomethylhydrazine (MMH), N-Nitrosodimethylamine (NDMA) and nitrogen tetroxide.
The articles also stated that both hydrazine and UDMH are highly toxic and are listed by the American Conference of Governmental Industrial Hygienists (ACGIH) as suspected human carcinogens. The Board accordingly accepts that the veteran was exposed to hazardous chemicals during service.
Diagnosis
That a condition or injury occurred in service alone is not enough; there must be a disability resulting from that condition or injury. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1993).
Existence of current disability must be shown by competent medical evidence. Degmetich, 104 F.3d 1328 (1997). This is the essence of the first part of the Hickson analysis.
"Current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection. Chelte v. Brown, 10 Vet. App. 268 (1997).
A March 2004 letter from Dr. RSM of the Mayo Clinic dated in March 2004 states that the veteran had been evaluated by specialists including a rheumatologist, gastroenterologist, neurologist, cardiologist, urologist and endocrinologist.
Dr. RSM stated that the veteran was shown to have a nonfunctioning adrenal carcinoma; the veteran's arm and foot pain was not shown to be due to a primary neurologic problem and many secondary causes of peripheral neuropathy had been ruled out.
Subsequent VA computed tomography (CT) scans in May 2004 and in April 2005 showed a continued impression of a left adrenal nodule without any significant changes since the 2003 Mayo Clinic report, and most likely representing a lipid-poor adenoma.
In regard to foot pain, the veteran had a VA history and physical (H&P) clinical examination in the VA community-based outpatient clinic (CBOC) in April 2004 when he complained of having foot pain and expressed concern that he had multiple symptoms due to exposure to Titan missile fuel. On examination, the veteran had flat feet, but no otherwise remarkable foot pathology, and his gait and station were normal.
The veteran's VA Computerized Problem List lists ongoing complaints including benign neoplasm of the adrenal gland and "foot pain."
The Board finds at this point that the veteran is shown to be competently diagnosed with benign adrenal adenoma. The first element of service connection is accordingly met for that disorder.
However, there is no medical evidence of a current neurological disorder of the feet. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).
"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer, 3 Vet. App. 223, 225.
There being no evidence of a present neurological disability of the feet for which service connection may be granted, the Board finds that the veteran has not submitted a claim for that disorder.
The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
In this case, the veteran's lay evidence regarding foot pain does not establish a current diagnosis under the criteria of Jandreau, there being no contemporaneous or subsequent medical diagnosis.
Nexus
As noted, the veteran is shown to have a current disorder manifested by benign adrenal adenoma.
However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). This is the essence of the third part of the Hickson analysis.
A January 2004 letter to the veteran from Dr. JEA, a private neurologist, states that he had reviewed documents provided by the veteran regarding UDMH exposure and the veteran's symptomatology. Dr. JEA stated it was not at all obvious how all of the veteran's symptoms could be blamed on such exposure. Dr. JEA recommended that the veteran consult a toxicologist.
Similarly, in a January 2004 letter to the veteran, Dr. HSL had reviewed treatment notes at the veteran's request but was unable to link his medical symptoms to exposure in the Air Force.
In March 2005, the veteran spoke to a VA physician in the CBOC requesting support for his belief that many complaints (adrenal adenoma, joint pains, and repeated infections) were related to exposure to UDMH. The veteran stated he wanted to speak to a toxicologist because he strongly believed, based on extensive background reading, that his complaints were linked to such exposure.
The CBOC physician informed the veteran that he was not a toxicologist and had no expertise in rocket fuel (specifically UDMH), and that, although he felt the veteran's exposure was significant, he did not personally feel the current complaints were related. The CBOC physician stated that the Veterans Integrated Service Network (VISN) did not have the services of a toxicologist.
The file was reviewed by a VA neurologist in April 2006 who noted the veteran's complaint of bilateral arm, leg, and foot pain and complaint of asymptomatic adrenal adenoma. The reviewer stated review of POISINDEX Managements for the chemicals in question showed no evidence of causing or aggravating the complaints contended by the veteran.
Specifically, the chemicals did not cause epicondylitis (which was the only identified cause of foot pain in treatment records), asymptomatic adrenal adenoma, or nonspecific body pain. A review of the claims file also failed to show a causal relationship between low-dose exposure and the veteran's symptoms.
The VA neurologist concluded it was less likely than not that the veteran's low-dose exposure to chemicals during military service caused or aggravated his adrenal adenoma or other complaints. Rather, his review of the file showed it was much more likely that the veteran suffered from a form of fibromyalgia.
The veteran had a VA CBOC H&P examination in August 2006 when he spoke at length to the examiner regarding his contention that he had disabilities resulting from exposure to rocket
fuel. The examiner informed the veteran that most of the articles presented by him did not link his medical problems to chemical rocket fuel exposure.
However, one article did note that benign adrenal adenoma to be associated with one of the chemicals cited, and the veteran might have a service connection claim for that one specific condition. The examiner also stated that further support for his claim could be inferred based on a significant decrease in allowable exposure to these chemicals at present, compared to the allowable limit when he was exposed.
The file was reviewed by a VA endocrinologist in May 2007.
The reviewer noted that the veteran's left adrenal adenoma was found incidentally in 2003 in the course of an evaluation for cough and chest pain, but that serial CT and magnetic resonance imaging (MRI) scans through April 2007 had shown stability (non-growth) of the lesion through the present.
The veteran was accordingly shown to have a benign, non-functional adrenal adenoma. Adrenal adenomas were noted to be found incidentally in five percent of patients undergoing abdominal or chest CT scans; the cause of adrenal adenomas in humans was unknown and there were no studies showing an increased number of adrenal tumors in humans with occupational exposure. It was accordingly less likely than not that the adrenal adenoma was caused by or the result of exposure to NDMA.
The veteran testified before the Board in September 2008 as to his personal conviction that his adrenal adenoma was related to exposure to toxins in service, based on his own extensive research. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).
However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability.
Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993); Bostain v. West, 11 Vet. App. 124, 127 (1998); Grivois v. Brown, 6 Vet. App. 135 (1994).
Instead, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation.
Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case there is no competent opinion of nexus by any trained health professional.
The veteran has submitted numerous articles and studies gleaned from the internet showing an increased risk of cancer attributable to exposure to hydrazine, UDMH, MMH, NDMA and/or
nitrogen tetroxide.
A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999) (emphasis added).
In this case, the competent medical opinion does not show that the medical articles submitted by the veteran establish a likely nexus between this veteran's adrenal adenoma and his exposure to chemicals in service. The VA H&P examiner in August 2006 specifically stated that most of the articles presented by the veteran did not link his medical problems to chemical rocket fuel exposure.
The same VA H&P examiner stated that the veteran might have a service connection claim because one of the articles associated benign adrenal adenoma with one of the chemicals cited, but the examiner did not cite any clinical rationale for why the article should apply in this veteran's case.
The Board notes 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).
Similarly, medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain, 11 Vet. App. 124, 127-28.
The speculative opinion of the VA H&P examiner that the veteran might have a claim is also contradicted by the later opinion of the VA endocrinologist in May 2007 who stated, after reviewing the medical record (including the observation of the H&P examiner) that it was not likely the veteran's adrenal adenoma was related to chemical exposure in service.
The endocrinologist supported that opinion with clinical rationale and citation to the treatment record.
It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators.
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
In this case the Board finds that the opinion of the VA endocrinologist is more probative than that of the VA H&P examiner because it is supported by clinical rationale and is also consistent with other opinions of record.
The physician's access to the claims file and the thoroughness and detail of the opinion are factors for assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000).
The Board also notes at this point that the Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri, 4 Vet. App. 467, 471-73.
In addition to the medical evidence, the Board has carefully considered lay evidence offered by the veteran, to include his testimony before the Board and his correspondence to VA.
Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board must consider the purpose for which lay evidence is offered.
Washington v. Nicholson, 19 Vet. App. 362 (2005).
In this case the veteran's lay evidence is offered to establish a medical etiology between the claimed adenoma and exposure to toxins in service. However, as shown above the veteran's unsupported lay opinion is not competent to establish the etiology of a medical disorder.
The Board notes that an injury during service may be verified by medical or lay witness statements; however, the presence of a current disability requires a medical diagnosis, and,
where an opinion is used to link the current disability to a cause during service, a competent opinion of a medical professional is required. Caluza v. Brown, 7 Vet. App. 498 (1995).
Because the veteran is a layperson not competent to opine on etiology, his unsupported lay opinion is not competent, and his credibility is not an issue at this point. See Layno, 6 Vet. App. 465, distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").
Accordingly, based on the medical and lay evidence of record, the Board finds that the criteria for service connection for an adrenal adenoma are not met. Therefore, the claim must be denied.
In adjudicating this claim the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Service connection for adrenal carcinoma is denied.
Service connection for a claimed neurological disorder
manifested by foot pain and numbness is denied.
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs