Citation Nr: 0811581 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 04-09 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a respiratory condition. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for an abdominal lump. REPRESENTATION Veteran represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from September 1966 to August 1968. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a May 2006 decision, the Board denied an initial compensable rating for a skin condition; an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD); and service connection for flat feet, a gallbladder condition, Dupuytren's contracture, a respiratory condition, bilateral hearing loss, tinnitus, and a hiatal hernia. The veteran appealed the Board's May 2006 decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in September 2007, the veteran's attorney and a representative of VA's Office of General Counsel filed a partial joint motion for remand. In a September 2007 order, the Court granted the motion, vacated the portion of the Board's May 2006 decision denying service connection for a respiratory condition, bilateral hearing loss, and tinnitus, and remanded the matter to the Board for readjudication. In light of the Court's order, a remand to the RO is now necessary with respect to the issue of service connection for tinnitus. In addition, during the pendency of the veteran's appeal at the Court, he perfected an appeal with respect to an additional issue. Specifically, a review of the record shows that in an August 2005 rating decision, the RO denied service connection for an abdominal lump, claimed as secondary to service-connected diabetes mellitus. The veteran perfected an appeal of the RO's decision in February 2006. The issues of service connection for tinnitus and an abdominal lump are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A respiratory condition, to include chronic bronchitis, acute sinusitis, and upper respiratory infections, was not clinically evident during the veteran's active service or for many years thereafter and the record on appeal contains no indication that any current respiratory disorder is causally related to the veteran's active service or any incident therein. 2. Bilateral hearing loss was not present during active service and or for many years thereafter and the most probative evidence of record indicates that any current hearing loss is not causally related to the veteran's active service or any incident therein. CONCLUSIONS OF LAW 1. A respiratory condition was not incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Bilateral hearing loss was not incurred during active service and may not be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of the VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. As previously explained by the Board in its now partially vacated May 2006 decision, VA has satisfied it's VCAA duties to notify the veteran. In the September 2007 Joint Motion discussed above, the parties identified no fault in VA's compliance with its VCAA notification duties or with the Board's reasons and bases for its findings in this regard. If the parties to the Joint Motion believed the Board's VCAA discussion was in any way problematical, they would have undoubtedly explained such potential error in the body of the Joint Motion. They did not. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that the "Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) (noting that "[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). For these reasons, the Board's May 2006 discussion of VA's VCAA notification duties is incorporated by reference. In addition to that discussion, the Board now notes that in various letters issued throughout the course of this appeal, the RO has repeatedly advised the veteran and his attorney of the information and evidence needed to substantiate and complete a claim of service connection, and of what part of that evidence the veteran was to provide and what part VA would attempt to obtain for him. These letters, including March 2003 and May 2003 letters issued prior to the initial decisions on the claims, also advised the veteran to submit or identify any additional information that he felt would support his claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board acknowledges that the VCAA letters discussed above do not specifically satisfy all of the notice requirements of section 5103(a), particularly the additional requirements in Dingess/Hartman. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (holding that VA bears the burden of rebutting the presumption that VCAA notification errors are prejudicial). After reviewing the record, however, the Board finds that any notification deficiencies have not resulted in prejudice to the veteran or otherwise affected the essential fairness of the adjudication. Specifically, the Board notes that for the disabilities at issue in this case, service connection has been denied. Veteran status, a disability rating, and an effective date are not at issue. Thus, any failure to notify the veteran of these elements is harmless error. In any event, the Board notes that in March 2006, the RO issued a letter for the express purpose of notifying the veteran of the additional elements imposed by the Court in Dingess/Hartman. A copy of this notice was sent to the veteran's attorney; however, neither the veteran nor the attorney responded. Medrano v. Nicholson, 21 Vet. App 165 (2007). In that regard, the Board further notes that throughout the course of this appeal, the veteran has been represented by counsel, who is well aware of the requirements of the VCAA and the elements needed to substantiate the veteran's claims, and he has made several submissions on behalf of the veteran during the course of this appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that VCAA notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO); see also Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a VCAA notice error); see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (pro se pleadings, not those of counsel, are entitled to sympathetic reading below). For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA notification duties to the veteran to the extent necessary. A remand for additional notification or development would only result in unnecessarily delaying this matter with no benefit flowing to the veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Duty to Assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In this case, the veteran's service medical records are on file, as are post-service VA and private clinical records identified by the veteran. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3). Here, the Board notes that the veteran submitted additional evidence to the Board without a waiver of initial RO consideration. The Board has reviewed the evidence of record and has determined that the private medical records from Ogallala Community Hospital are not relevant to the claims on appeal. Additionally, records from Stillwater Medical Center and Dr. D.C.N. are essentially duplicative of the evidence already in the record and, with regard to the claims for service connection for a respiratory condition, they do not contain evidence that the veteran had the claimed condition in service or shortly thereafter. Further, while such records contain diagnoses, they are dated many years post- service and do not contain a nexus opinion relating the claimed conditions to the veteran's period of active duty service. Thus, a remand for an SSOC is not necessary. Neither the veteran nor his attorney has argued otherwise. Under the VCAA, the duty to assist may include obtaining a medical examination or opinion if such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In the September 2007 Joint Motion discussed above, the parties stated that the veteran had contended that his respiratory condition, hearing loss, and tinnitus had been present since service. The parties agreed that a remand was necessary, as in its May 2006 decision, the Board had failed to provide adequate reasons and bases as to whether the veteran's statements in this regard "triggered VA's requirement to obtain an opinion under 38 U.S.C.§ 5103(d)." See September 2007 Joint Motion, page 3. This was the sole basis for remand. As a preliminary matter, the Board notes that VA has, in fact, already obtained a VA medical opinion in connection with the veteran's claim of service connection for bilateral hearing loss. Specifically, the record on appeal contains a September 2003 VA medical opinion in which the VA Chief of Audiology noted that based on his review of the claims folder, it was his opinion that any present hearing loss was not related to the veteran's military service. He explained that a puretone threshold test performed at the time of the veteran's separation from service was normal. The Board assigns this opinion great probative weight, as it was based on a review of the veteran's claims folder and because the examiner provided a rationale for his conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 279, 284 (1997). Moreover, the Board notes that there is no other medical opinion of record which contradicts this opinion. The Board therefore concludes that the record on appeal contain sufficient medical evidence to make a decision on the claim and that an additional medical examination or opinion is not necessary with respect to the claim of service connection for hearing loss, nor is an examination or opinion necessary with respect to the claim of service connection for a respiratory disorder. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4). Under applicable criteria, an examination or opinion is "necessary" if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as discussed in detail below, the veteran's service medical records are entirely negative for complaints or findings of a respiratory disorder or hearing loss. There is no probative evidence that the veteran suffered an event, injury, or disease in service. See Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed.Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). To the extent the veteran now claims that he has had hearing loss and a respiratory disorder since service, the Board finds his statements to be lacking in credibility. As discussed in detail below, the service medical records do not document his current assertions. Indeed, they flatly contradict such assertions. While the veteran now claims he has had a respiratory disorder and hearing loss since service, the Board observes that at his August 1968 military separation medical examination, he specifically denied having hearing loss and symptoms of a respiratory disorder, such as a chronic cough or pain or pressure in the chest. Moreover, examination at that time affirmatively showed that his lungs, chest, and hearing acuity were within normal limits. The Board finds that the contemporaneous records are entitled to more probative weight than the recollections of the veteran of events which occurred decades previously. The Board further notes that the post-service medical evidence is negative for complaints or findings of hearing loss or a respiratory disorder for many years after service. In Savage v. Gober, 10 Vet. App. 488 (1997), it was noted that while the concept of continuity of symptomatology under 38 C.F.R. § 3.303(b) focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment may bear upon the credibility of the evidence of continuity. The record here discloses a span of many years without any clinical evidence to support the veteran's current assertion of a continuity of hearing loss and a respiratory disorder since service. The fact that the contemporaneous records do not provide subjective or objective evidence that supports any recent contention that the veteran experienced continuous symptomatology since the claimed in-service acoustic trauma is highly probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Not only does the record fail to establish that the veteran suffered an event, injury or disease in service, it further fails to establish that his current disabilities or symptoms may be associated with service. While the veteran himself claims that he currently has hearing loss and a respiratory disorder as a result of service, as the record does not establish that he possesses a recognized degree of medical knowledge, he lacks the competency to provide evidence that requires specialized knowledge, skill, experience, training or education, such as an opinion on etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Again, there is no other indication of record that the veteran's current claimed hearing loss or respiratory disorder may be associated with service. For the reasons discussed above, the Board finds that an additional examination is not necessary with respect to the claim of service connection for hearing loss, nor is an examination necessary with respect to the claim of service connection for a respiratory disorder. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Rather, there is sufficient competent medical evidence in the record to make a decision on the claim. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA development duties to the veteran. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain diseases, such as an organic disease of the nervous system like sensorineural hearing loss, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In addition, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non service- connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Analysis Respiratory condition The veteran contends that he is entitled to service connection for a respiratory condition. Having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this matter, the veteran's service medical records are wholly devoid of any complaints, treatments, or diagnoses of a respiratory condition. Indeed, at his August 1968 military separation medical examination, the veteran's lungs and chest were normal. A chest X-ray was negative. In addition, the Board notes that in connection with his separation examination, the veteran completed a report of medical history on which he specifically denied a history of shortness of breath, pain or pressure in the chest, and a chronic cough. The post-service medical evidence is similarly negative for notations of a respiratory disorder for many years after service. The veteran has submitted medical evidence from various providers, to include Dr. D.C.N. and Great Plains Regional Medical Center, which indicate he has been treated for acute sinusitis and upper respiratory infections. In an April 2003 statement, the veteran reported trouble breathing in his sleep. He further indicated that he was on inhalers and had trouble catching a full breath. During a May 2003 VA general medical examination, the veteran complained of chronic bronchitis for a period of approximately five years. He reported a chronic cough with phlegm. The veteran indicated that he smoked in the past. Physical examination showed his lungs were clear to auscultation. The veteran was diagnosed with chronic bronchitis, which the examiner noted was "non-service connected," although the examiner did not further elaborate. Despite current evidence of chronic bronchitis, acute sinusitis, and repeat upper respiratory infections, there is no evidence of record to substantiate the critical second and third components of the Guiterrez inquiry, as enumerated above. The service medical and personnel records do not support a finding of a respiratory condition in service. Moreover, there are no probative opinions of record that aforementioned are related to the veteran's active duty service. The Board has considered the veteran's recent statements to the effect that his respiratory condition has been present since his separation from active service. Again, the Board finds that the veteran's recent assertions to the effect that his respiratory condition has been present since service are not credible. The record here discloses a span of many years without any clinical evidence to support the veteran's assertion that his respiratory condition has been present since service. In fact, the Board notes that such records flatly contradict his current assertions. For example, at his August 1968 military separation medical examination, the veteran's lungs and chest were normal. A chest X-ray was negative. In addition, on a report of medical history, the veteran specifically denied a history of shortness of breath, pain or pressure in the chest, and a chronic cough. The fact that the contemporaneous records do not provide subjective or objective evidence that supports any recent contention that the veteran experienced continuous symptomatology since the claimed in-service acoustic trauma is highly probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Thus, while the Board has considered the veteran's contentions that he has had a respiratory condition since service, it finds that the contemporaneous records are entitled to more probative weight than the recollections of the veteran of events which occurred decades previously. Moreover, in the instant case, there was a prolonged period after the veteran's discharge, without respiratory complaints, which the Board has considered, along with other factors concerning the veteran's health and medical treatment during and after military service, to determine whether an injury or disease was incurred in service, which resulted in any chronic or persistent respiratory disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board highlights this absence of evidence because it constitutes negative evidence against the claim as it tends to disprove the claim that a respiratory condition was the result of active duty service which in turn resulted in a chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). The Board has further considered the veteran's contentions that his current respiratory condition is causally related to his active service. However, as the record does not establish that he possesses a recognized degree of medical knowledge, he lacks the competency to provide evidence that requires specialized knowledge, skill, experience, training or education, such as a medical nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For these reasons, the Board finds that his statements regarding a nexus are not probative. In summary, the Board finds that a respiratory condition, to include chronic bronchitis, acute sinusitis, and upper respiratory infections, was not present during service or for many years thereafter and the record on appeal contains no probative evidence that any current respiratory disorder is causally related to the veteran's active service, any incident therein, or any service-connected disability. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim. The benefit of the doubt doctrine is not for application where the clear weight of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Bilateral Hearing Loss The veteran contends that he is entitled to service connection for bilateral hearing loss. Specifically, the veteran asserts that he was exposed to heavy gunfire on a regular basis during service and such gunfire resulted in a decline in hearing acuity. He also argues that his hearing was affected by radio conversations he was involved in while serving as an airplane "spotter." Having carefully considered the veteran's claims in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied. In this matter, the veteran's service medical records are wholly devoid of any complaints, treatment, or diagnoses of bilateral hearing loss or tinnitus. Upon his enlistment examination in April 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) -5 (5) -5 (5) -5 (5) 0 (5) LEFT -5 (10) -5 (5) 0 (10) 10 (20) 15 (20) NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) Upon separation examination in August 1968, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 10 - 5 LEFT 0 5 5 - 0 No diagnoses of bilateral hearing loss was rendered nor was it reported by the veteran on his August 1968 Report of Medical History. It would also appear from comparing the puretone thresholds above, the veteran's hearing improved upon separation from service. In September 2003, the veteran was afforded a records review by a VA audiologist. The examiner reviewed the claims folder and found the veteran's pure tone threshold test upon separation from active duty service was within normal limits. Therefore, he opined that any present hearing loss was not related to his active duty service. As delineated above, the first evidence in the record of a complaint of hearing loss is not until February 2003, when the veteran filed his claim. Thus, the Board finds there is a 35-year evidentiary gap in this case between active service and the earliest indication of complaints of hearing loss. The Board highlights this absence of evidence because it constitutes negative evidence against the claims as it tends to disprove the claim that bilateral hearing loss was the result of exposure to heavy gunfire and radio conversation in-service which in turn resulted in chronic disabilities or persistent symptoms thereafter. See Forshey, 12 Vet. App. at 74 , aff'd sub nom. Forshey, 284 F.3d at1358. Additionally, the Board has considered the veteran's recent contentions to the effect that his hearing loss has been present since his separation from active service. Again, the Board finds that the veteran's recent assertions to this effect are not credible. The record here discloses a span of many years without any clinical evidence to support the veteran's assertion that his respiratory condition has been present since service. In fact, the Board notes that such records flatly contradict his current assertions. For example, at his August 1968 military separation medical examination, audiometric testing was normal. Moreover, on a report of medical history, the veteran specifically denied having hearing loss. The Board finds that the contemporaneous records are entitled to more probative weight than the recollections of the veteran of events which occurred decades previously. In addition, the Board notes that despite current complaints of hearing loss, there is no evidence of record to substantiate the critical second and third components of the Guiterrez inquiry, as enumerated above. The service medical and personnel records do not support a finding of bilateral hearing loss in service. Moreover, there are no probative opinions of record that any current hearing loss is related to the veteran's active duty service or any incident therein. The veteran has had ample opportunity to submit evidence in support of his claims. For these reasons, an additional VA examination is not necessary in order to decide the claims in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas, 18 Vet. App. at 517. While the veteran contends that his bilateral hearing loss is causally related to his active service, , his statements do not constitute competent evidence of a medical nexus opinion. Espiritu, 2 Vet. App. at 494-95. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeals must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. ORDER Entitlement to service connection for a respiratory condition is denied. Entitlement to service connection for bilateral hearing loss is denied. REMAND The veteran also seeks service connection for tinnitus. According to the veteran's attorney, the veteran contends that tinnitus has been present since service. A review of the record on appeal indicates that the first contemporaneous evidence documenting complaints of tinnitus is dated in January 1997, when the veteran reported left ear tinnitus at the time of a tonsillectomy performed at the Great Plains Regional Medical Center. In an April 2002 Primary Care Assessment, however, the veteran denied tinnitus. In September 2003, the veteran was afforded a records review by a VA audiologist. The examiner reviewed the claims folder and opined that any present hearing loss was not related to his active duty service. The examiner, however, noted there was insufficient evidence to determine whether any reported tinnitus was related to military service. It is unclear whether an examination of the veteran would have provided the examiner with additional information. Thus, to ensure that the veteran receives every possible consideration, a remand is necessary. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is subjective, and the kind of condition to which lay testimony is competent). With respect to the claim of service connection for an abdominal lump, the veteran claims that he recently developed an abdominal lump which he feels may be secondary to his service-connected diabetes mellitus. The Board notes that service-connection has previously been denied for a gallbladder condition and a hiatal hernia. The record on appeal contains private clinical records showing that in January 2005, the veteran sought treatment with complaints of a "left-sided abdominal wall lump" associated with tenderness and burning type pain. The veteran's physician noted that "multiple examiners have not been able to feel any significant mass." He further noted that a CT scan of the abdomen had been normal, with no evidence of any intraabdominal mass or subcutaneous mass." He indicated that "[i]n short, I do not have any explanation for [his] pain and his sense of mass." The veteran was afforded a VA medical examination in June 2005, at which the examiner observed a "very minimal irregularity" of the left upper abdominal wall, possibly a small ventral hernia. The diagnosis was very small left upper quadrant abdominal wall herniation, recurrent upper abdominal pain. The examiner indicated that although numerous diagnostic tests had been performed, the results of the studies were not of record. Thus, he indicated that he was unable to provide an opinion as to whether the veteran's abdominal wall condition was associated with his service- connected diabetes mellitus. The Board has reviewed the record and notes that it does contain the results of numerous diagnostic tests conducted in connection with the veteran's complaints of an abdominal lump, including a June 2005 CT scan of the abdomen. It is unclear whether the examiner did not have access to the veteran's claims folder or if he merely overlooked these diagnostic studies. Regardless, the nature and etiology of the veteran's claimed abdominal lump remains unclear. Thus, the Board finds that a VA medical examination is necessary to clarify the nature and etiology of the veteran's claimed abdominal lump, to include the possibility that it is secondary to his service-connected diabetes mellitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action:. 1. The veteran should be afforded a VA medical examination for the purposes of determining the nature and etiology of any current tinnitus. The claims folder must be provided to the examiner for review in connection with the examination. After examining the veteran and reviewing the claims folder, the examiner should provide an opinion, with supporting rationale, as to the whether it is at least as likely as not that the veteran's current claimed tinnitus is causally related to his active service or any incident therein. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 2. The veteran should also be afforded a VA medical examination for the purposes of determining the nature and etiology of any current abdominal lump. The claims folder must be provided to the examiner for review in connection with the examination. After examining the veteran and reviewing the claims folder, the examiner should provide an opinion as to the following: (1) Does the veteran currently have a disability manifested by an abdominal lump; and, if so, (2) Is it as least as likely as not that any current disability manifested by an abdominal lump is causally related to the veteran's service-connected diabetes mellitus? The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 3. After the above development has been completed, the RO should review all the evidence of record in readjudicating the veteran's claims. If the veteran's claims remain denied, he and his attorney should be provided with a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs