Citation Nr: 0817662 Decision Date: 05/29/08 Archive Date: 06/09/08 DOCKET NO. 04-10 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an asbestos-related pulmonary disorder. 2. Entitlement to service connection for arthritis of the right hand. 3. Entitlement to service connection for arthritis of the left hand. REPRESENTATION Veteran represented by: John Stevens Berry, Attorney at Law ATTORNEY FOR THE BOARD S. Bush, Counsel INTRODUCTION The veteran served on active duty in the United States Navy from November 1964 to November 1968. This matter is before the Board of Veterans' Appeals (the Board) on appeal of September 2003 and April 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (the RO). Procedural history The claims for service connection for arthritis of the bilateral hands In June 2003, the veteran filed claims of entitlement to service connection for arthritis in the bilateral hands, which were denied by the RO in the above-referenced September 2003 rating decision. The veteran filed a notice of disagreement with the September 2003 rating decision and requested review by a decision review officer (DRO). The DRO conducted a de novo review of the arthritis claims and confirmed the RO's findings in a January 2004 statement of the case (SOC). The appeal was perfected with the submission of the veteran's substantive appeal (VA Form 9) in March 2004. These claims were remanded by the Board in August 2005 for additional evidentiary development. This was accomplished, and in May 2007 the RO issued a supplemental statement of the case (SSOC) which continued to deny the veteran's claims of entitlement to service connection for arthritis of the bilateral hands. The veteran's claims folder was subsequently returned to the Board. The claim for an asbestos-related pulmonary disorder The RO initially denied the veteran's claim of entitlement to service connection for residuals of asbestos exposure in the above-referenced September 2003 rating decision. The veteran did not appeal the denial of the asbestos residuals claim, and it became final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2007). The veteran filed to reopen his claim of entitlement to service connection for "asbestosis/pulmonary condition/absestosis related lung disease" in August 2005. In the above-referenced April 2007 rating action, the RO determined that new and material evidence had been submitted which was sufficient to reopen the previously-denied claim. The claim was denied on the merits. The veteran filed a notice of disagreement with the April 2007 decision, electing to follow the traditional appeal process. A SOC was issued in May 2007, and the veteran perfected an appeal with the timely submission of a substantive appeal (VA Form 9) in June 2007. In October 2007, the Board solicited an expert medical opinion from a pulmonologist with the Veterans Health Administration (VHA) concerning an unresolved and complex medical matter as to this issue. See 38 C.F.R. § 20.901 (2007). In November 2007, the Board received the requested VHA opinion. In December 2007, the veteran submitted written argument directly to the Board concerning his exposure to asbestos in service. He requested that his case be remanded to the agency of original jurisdiction (AOJ) for initial review of his argument. However, the veteran's December 2007 statement is merely redundant of argument already in the record. Moreover, as detailed below the veteran's exposure to asbestos in service is established, so additional argument on this point is superfluous. Therefore, remand to the AOJ for consideration of the veteran's argument is not required. See 38 C.F.R. § 20.1304(c) [which requires that any "pertinent" evidence be referred back to the RO for consideration unless accompanied by a written waiver of AOJ review]. Issues not on appeal In August 2005, the Board denied the veteran's claims of entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus and entitlement to secondary service connection for acid reflux disease and irritable bowel syndrome. There is indication in the record that these two claims have been appealed to the United States Court of Appeals for Veterans Claims (the Court). However, the outcome of that appeal is irrelevant to the instant case- in other words, if the veteran's service- connected diabetes mellitus is awarded an increased disability rating or service connection is granted for a gastrointestinal disorder, it will have no effect whatsoever on the outcome of the issues presently within the Board's jurisdiction. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Accordingly, the Board may proceed to a decision as to these three issues. FINDINGS OF FACT 1. In September 2003, the RO denied the veteran's claim of entitlement to service connection for residuals of asbestos exposure, on the basis that the veteran had not submitted evidence of a current disability. A timely appeal as to that issue was not perfected. 2. The evidence associated with the claims folder subsequent to RO's September 2003 rating decision is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 3. The competent medical evidence of record does not indicate that an asbestos-related pulmonary disorder currently exists. 4. The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's military service and his currently diagnosed right hand arthritis. 5. The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's military service and his currently diagnosed left hand arthritis. CONCLUSIONS OF LAW 1. The September 2003 RO decision denying service connection for residuals of asbestos exposure is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. Since the September 2003 RO decision, new and material evidence has been received which serves to reopen the claim of entitlement to service connection for residuals of asbestos exposure. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. An asbestos-related pulmonary disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 4. Arthritis of the right hand was not incurred in or aggravated by active military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 5. Arthritis of the left hand was not incurred in or aggravated by active military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for arthritis of the bilateral hands and an asbestos-related pulmonary disorder. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. New and material evidence As was noted in the Introduction, a September 2003 RO decision denied the veteran's claim of entitlement to service connection for asbestos residuals. That decision was not appealed and is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The RO recently reopened the veteran's previously-denied claim of entitlement to residuals of asbestos exposure and denied it on the merits. Regardless of whether the RO reopened the veteran's claim, the question of whether new and material evidence has been received is one that must be addressed by the Board. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for claim, making RO determination in that regard irrelevant.] See also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. The RO's denial in September 2003 was predicated on the absence of a current disability. To warrant reopening of the claim, there must be new and material evidence as to this element. See 38 U.S.C.A. § 5108. Therefore, the Board's inquiry will be directed to the question of whether any additionally received (i.e. after September 2003) evidence bears directly and substantially upon the specific matter under consideration, namely whether the veteran has current disability associated with asbestos exposure. See 38 C.F.R. § 3.156 (2007). Additional evidence added to the claims folder since the September 2003 denial includes evidence indicative of an asbestos-related pulmonary disability. Specifically, in a May 2005 report, A.J.S., D.O., diagnosed the veteran "interstitial fibrosis caused by bilateral pulmonary asbestosis as well as bilateral asbestos-related pleural disease." Accordingly, new and material evidence pertaining to the existence of a current disability has been submitted. The veteran's claim of entitlement to service connection for residuals of asbestos exposure is reopened. Stegall concerns As was alluded to in the Introduction, in August 2005 the Board remanded the two arthritis claims. In essence, the Board instructed the AOJ to obtain a VA nexus opinion. The AOJ was then to readjudicate the claim. The claims folder was referred for a VA nexus opinion as to the arthritis claims in April 2007, the report of which indicates the examiner reviewed the veteran's past medical history and rendered an appropriate medical nexus opinion in conformity with the August 2005 remand instructions. The RO then readjudicated the claims in the May 2007 SSOC. Thus, all of the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issues has proceeded in accordance with the provisions of the law and regulations. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in the above-referenced July 2003, October 2005 and January 2007 letters, as well as an additional letter from the RO dated September 1, 2005, whereby the veteran was advised of the provisions relating to the VCAA. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his service connection claims in a letter from the RO dated October 6, 2005, including evidence of "a relationship between your disability and an injury, disease, or event in military service." With respect to the veteran's claimed asbestos exposure, a July 18, 2003 letter from the RO asked the veteran to "Tell us the specific disease that resulted from asbestos exposure. Tell us why you believe the disability was caused by asbestos and provide some evidence, such as a medical opinion, of this relationship." Specifically, the veteran was advised in the September 2005, October 2005 and January 2007 letters that VA would assist him with obtaining relevant records from any Federal agency, including records from the military, VA Medical Centers and the Social Security Administration. With respect to private treatment records, the September 2005, October 2005 and January 2007 letters informed the veteran that VA would make reasonable efforts to obtain non-Federal evidence. The September 2005 letter specifically noted that records from Dr. S., Dr. B. and the Great Plains Regional Medical Center had been requested on his behalf. Included with all four letters were copies of VA Form 21-4142, Authorization and Consent to Release Information, and the letters requested that the veteran complete such so that the RO could obtain private records on his behalf. The veteran was also advised in the four letters that a VA examination or nexus opinion would be obtained if necessary to decide his claims [such was accomplished in October 2005 and April 2007]. The September 2005, October 2005 and January 2007 letters further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure that we receive all requested records that are not in the possession of a Federal department or agency" [Emphasis as in the September 2005 and January 2007 letters]. The veteran was further informed as follows: "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." See, e.g., the October 6, 2005 VCAA letter, page 2; and the January 5, 2007 VCAA letter, page 3. This complies with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the above-referenced January 2007, letter as well as an additional letter from the RO dated March 20, 2006, both of which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letters as to examples of evidence that would be pertinent to a disability rating, such as medical treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the March 2006 and January 2007 letters instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letters as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. With respect to the instant case, element (1), veteran status, is not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection. In other words, any lack advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. The veteran's claims of entitlement to service connection was denied based on elements (2), existence of a disability, and (3), connection between the veteran's service and the claimed disability. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those crucial elements. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. The veteran was not provided complete notice of the VCAA prior to the initial adjudication of his arthritis claims in September 2003. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the veteran was provided with VCAA notice through the September 2005, October 2005, March 2006 and January 2007 VCAA letters, and his arthritis claims were readjudicated in the May 2007 SSOC, after he was provided with the opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider his claim on the merits. The veteran has pointed to no prejudice resulting from the timing of the VCAA notice. The Board notes that the veteran, through his attorney, has submitted correspondence which purported to allege that under the VCAA VA must notify him of "the existence of negative evidence and how to counter this evidence." See, e.g., a June 10, 2007 Statement in Support of Claim. However, the United States Court of Appeals for the Federal Circuit has specifically found that VCAA notice "may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim)." See Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) at 1062. The Court has further stated that since 38 U.S.C.A. § 5103(a) "deals only with information and evidence gathering prior to the initial adjudication of a claim . . . it would be senseless to construe that statute as imposing upon the Secretary a legal obligation to rule on the probative value of information and evidence presented in connection with a claim prior to rendering a decision on the merits itself." See Locklear v. Nicholson, 20 Vet.App. 410 at 415 (2006). Therefore, the attorney's contention is meritless. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the appellant]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, reports of VA and private treatment of the veteran have been associated with the claims folder. Additionally, the veteran was afforded a VA respiratory examination in October 2005. The RO sought an addendum opinion from the same examiner in May 2007, and the Board sought further clarification as to the issue via a VHA opinion in November 2007. As for the veteran's arthritis claims, a VA opinion was obtained in April 2007, the report of which indicates the examiner rendered an appropriate medical nexus opinion in conformity with the August 2005 remand instructions. The Board notes that the RO attempted to obtain records from the Great Plains Regional Medical Center and private radiologist D.B., based on the veteran's submission of releases for this evidence in September 2005. Both The Great Plains Regional Medical Center and Dr. B. informed the RO later that same month that no records pertaining to the veteran existed on the dates he claimed to have received treatment (August 25, 2004 and September 11, 2004, respectively). The veteran was informed of the RO's inability to locate these records in the April 2007 rating decision. See the April 16, 2007 rating decision, page 2. He did not respond. Moreover, his attorney offered no additional information as to how VA could locate these records. VA has thus complied with the statute in order to develop the evidence with respect to the veteran's claims, and any failure to develop this claim rests with the veteran himself. See 38 U.S.C.A. § 5107 (West 2002) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. The Court has held that VA's duty to assist the veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Accordingly, the Board will proceed to a decision as to the three issues currently on appeal. 1. Entitlement to service connection for an asbestos-related pulmonary disorder. The veteran seeks entitlement to service connection for a pulmonary disorder, which he contends is a result of asbestos exposure in service. See the August 17, 2005 Statement in Support of Claim. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992). A "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection. See Chelte v. Brown, 10 Vet. App. 268 (1997). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The veteran is seeking entitlement to service connection for a pulmonary disorder due to exposure to asbestos in service. He has proffered no other theory of entitlement, and the evidence of record does not suggest any. As noted above, in order for a veteran to prevail on an issue of service connection there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson, supra. Turning first to Hickson element (2), in-service incurrence of disease or injury, the Board will separately address disease and injury. With respect to in-service disease, there is no indication of pulmonary disease or complaints in the veteran's service medical treatment records, and the veteran does not appear to contend that such problems existed in service. With respect to in-service injury, the only injury reported by the veteran is exposure to asbestos in service. Essentially, he contends that he had to wear an unlined "full asbestos suit" and was also exposed to asbestos- ridden gaskets while performing ship repairs. See the veteran's August 1, 2003 Statement in Support of Claim. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The veteran's service records indicate that he served aboard the U.S.S. Prairie, the U.S.S. Radford and the U.S.S. Marshall. Among his tasks were repairing valves aboard ship. See the veteran's August 2003 statement. Moreover, the October 2005 VA examiner and Dr. B.K. both indicated that there was asbestos exposure in service [although such was characterized as "minimal"]. The Board therefore concludes that the veteran was exposed to asbestos in service, thus satisfying Hickson element (2). See McGinty, supra. Moving to Hickson element (1), current disability, the Board initially observes that the veteran's claim has been limited to asbestos-related pulmonary disability, such as asbestosis. There exists conflicting medical evidence as to the presence of a current pulmonary disorder related to asbestos exposure. In the veteran's favor is a May 2005 report from A.J.S., who performed pulmonary function studies and found "moderate impairment in diffusion." After reviewing a private chest X-ray dated August, 25, 2004, he offered a diagnosis of "interstitial fibrosis caused by bilateral pulmonary asbestosis as well as bilateral asbestos-related pleural disease." In contrast to the findings of Dr. A.J.S. are those of the October 2005 VA examiner and November 2007 VHA pulomonologist. The Board will discuss each in turn. The October 2005 VA examiner conducted an X-ray study of the veteran's chest and indicated "no pulmonary asbestosis found on a CURRENT chest xray" [Emphasis as in the original]. He then commented on the discrepancy between his findings and that of Dr. A.J.S.: There was a letter from [Dr. A.J.S.] that stated the veteran had specific X-ray findings on a chest X-ray from last year that were consistent with pulmonary asbestosis. Yesterday's chest X-ray, after the examination, was completely normal. Therefore, I cannot explain this discrepancy. If the veteran truly had pulmonary asbestosis and chest X-ray findings consistent with that, as stated on the examination he had last year by [Dr. A.J.S.], this examiner would find it truly incredible and amazing that these findings would disappear on a routine chest X-ray performed at this facility, from last year to now. Therefore, I highly suspect that the previous chest X- ray (and report) performed last year during that evaluation is somewhat dubious concerning the report and findings. Classic chest X-ray findings related to pulmonary asbestosis would certainly not disappear. Therefore, at this point in time, this examiner's final comments change the diagnosis to NO pulmonary asbestosis found based on a current chest X-ray. Additional clarification as to the presence of asbestos- related disability was sought from the same VA examiner in May 2007: This examiner did review the CPRS system concerning all visits. I also reviewed all testing performed, which included three chest X-rays and two CT scans of the chest in the past. When I reviewed these, I could not find any documentation or keywords that would suggest asbestos exposure or pulmonary asbestosis. Of those five studies, specifically three chest X-rays and two CT scans, there was no wording in any of those that would even remotely suggest any findings related to asbestos exposure or asbestosis. The chest X-ray[s] were read as normal, there was a question of a pulmonary nodule and some non-calcification issues, but none of these has any keywords that would related to pulmonary asbestosis as of currently. One would assume that if this veteran's claimed long-term exposure to asbestos was true, then pulmonary plaques or pleural thickening or calcified pleural plaques would be present. There is no mention of any of these in any of the testing that he has had done over time. In addition, a review of all of his multiple visits to the North Platte VA office has never mentioned any specific pulmonary issues, other than bronchitis in the past, and he is not taking any medications for any pulmonary disease nor any inhalers. Therefore, it is not likely that this veteran has any pulmonary asbestosis. The conclusions contained in the October 2005 VA examination report and May 2007 addendum are further supported by the November 2007 VHA opinion of pulmonologist B.K.: Chest X-rays performed at the VA on 3/31/99, 5/5/99, and 10/6/05 were all read as normal without evidence of pleural or parenchymal disease. This is in contrast to a chest X-ray performed by a private physician on 8/25/04 and interpreted as showing mild interstitial disease with areas of pleural thickening. Without having the actual films to examine, I am unable to comment on the apparent discrepancy. It is possible that an acute process (such as a pneumonia) was active around the time of the 2004 film and the changes resolved prior to the 2005 film. The pleural thickening and parencymal scarring usually seen in cases of asbestosis are permanent and slowly progressive. It would be very unusual for them to not be present on films from 1999, show up in 2004, and then regress by 2005. . .There are no findings noted on physical examination which would suggest the presence of pulmonary disease. Pulmonary function tests do not show evidence of either obstruction or restriction. While the mild diffusion impairment seen could indicate early parenchymal disease, it is commonly encountered in heavy smokers. . . . In summary, it is not clear that the veteran has a pulmonary disorder. Assuming that he does however, the objective data available in his paper chart do not support a diagnosis of asbestosis. By law, the Board is obligated under 38 U.S.C.A. § 7104(d) to analyze the credibility and probative value of all medical evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has carefully evaluated the conflicting evidence and for reasons stated immediately below places greater weight on the opinion of the October 2005 VA examiner and the November 2007 VHA opinion than it does on the May 2005 opinion of Dr. A.J.S. The Board initially notes that Dr. A.J.S. is a doctor of osteopathy, as opposed to Dr. B.K., who was selected to provide the Board with a medical opinion given his expertise in related complex medical matters, specifically pulmonology. See Black v. Brown, 10 Vet. App. 297, 284 (1997) [in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data]. Further, both the October 2005 VA examiner and Dr. B.K. based their opinions as to the lack of asbestos-related pulmonary disease on a review of all of the veteran's medical records, and emphasized the lack of X-ray evidence of pulmonary disease both prior and subsequent to the time of Dr. A.J.S.'s diagnosis. Significantly, Dr. A.J.S. did not account for the discrepancy between the results of the August 2004 X-ray on which he based his opinion and the two normal VA chest X-ray reports in 1999. Indeed, it does not appear that Dr. A.J.S. reviewed the veteran's claims folder in rendering his opinion. The failure of Dr. A.J.S. to explain his diagnosis of asbestos- related pulmonary disease in light of this negative evidence weighs heavily against the probative value of his opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Unlike the opinion of the Dr. A.J.S., the opinions of the October 2005 VA examiner and Dr. B.K. appear to be based on a review of the veteran's entire claims file which, as noted above, contains no X-ray corroboration of asbestos-related pulmonary disease. These opinions are also well-reasoned and draw on specific aspects from the veteran's medical history, including his history of heavy smoking and lack of any treatment for pulmonary problems or receipt of pulmonary medications. As such, the Board finds their opinions to be highly probative. See Bloom, supra. It therefore strongly appears that the August 2004 x-ray, and the resulting opinion of Dr. A.J.S. are outliers which are completely at odds with the remainder of the medical tests and opinions of record. Based on the entire record, the Board gives the opinion of Dr. A.J.S. little weight of probative value. The only other evidence in the claims file alleging that the veteran has asbestos-related pulmonary disease are the veteran's statements and those of his attorney. It is now well settled, however, that lay persons without medical training, such as the veteran and his attorney, are not qualified to render medical opinions regarding matters such as diagnosis of disease, which call for specialized medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (2007) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The veteran's statements and that of his attorney are accordingly lacking in probative value. Accordingly, the competent medical evidence of record does not indicate the presence of an asbestos-related pulmonary disorder. In light of the lack of competent medical evidence of a current asbestos-related pulmonary disorder, Hickson element (1) has not been met, and the veteran's claim fails on this basis alone. See Brammer, supra; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [noting that service connection may not be granted unless a current disability exists]. The veteran's attorney has submitted argument that VA provided no reasons or bases for its reliance on the October 2005 VA examiner's opinion "but for the conclusory statement [that] the non-favorable October 2005 X-ray is 4 months later in time. No scientific basis is shown for such a conclusory statement." See the May 2007 notice of disagreement, page 3. The Board has already detailed extensively why the opinion of Dr. A.J.S. and the August 2004 x-ray upon which that opinion was evidently based lack probative value. Of significance, and for some reason not mentioned by the veteran's attorney as well a Dr. A.J.S., is that previous, as well as subsequent, x-ray studies were negative for the presence of asbestos. Moreover, both Dr. B.K. and the October 2005 VA examiner offered rationale behind there opinions and based such on evidence contained in the claims folder, unlike Dr. A.J.S., who based his findings on an X-ray which is not of record. Accordingly, the attorney's contentions that there is no basis to support the opinions of the October 2005 VA examiner and Dr. B.K., that "VA ignore[d] a favorable medical nexus opinion" and "cherry-picked its evidence while ignoring the more scientifically competent medical evidence" are completely without merit. Indeed, it is obvious that it is the veteran's attorney who is "cherry-picking" evidence. The Board additionally observes that in the absence of a current asbestos-related pulmonary disability, it follows that Hickson element (3), or medical nexus, is an impossibility. The Board has already detailed above how Dr. A.J.S.'s opinion lacks probative value in light of the evidence of record. To the extent that the veteran himself and his attorney contend that a medical relationship exists between a current pulmonary disease and asbestos exposure in service, their opinions are entitled to no weight of probative value. See Espiritu, supra; see also Voerth v. West, 13 Vet. App. 117, 119 (1999) [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service]. Any such statements offered in support of the veteran's claim does not constitute competent medical evidence and cannot be accepted by the Board. See also Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Accordingly, Hickson element (3), medical nexus, has also not been satisfied, and the claim also fails on that basis. Conclusion In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for an asbestos-related pulmonary disorder. Therefore, contrary to the assertions of the veteran's attorney, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. 2. Entitlement to service connection for arthritis of the right hand. 3. Entitlement to service connection for arthritis of the left hand. In the interest of economy, because these two issues involve the application of identical law to identical facts, the Board will address them together. Relevant law and regulations Service connection - in general The law and regulations relevant to service connection in general are detailed above and need not be repeated for the sake of brevity. Presumptive service connection For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Continuity of symptomatology In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2007). Analysis The veteran contends that repetitively chipping paint of off ships with a hammer in service led to his current arthritis of the bilateral hands. See the January 15, 2004 substantive appeal. With respect to Hickson element (1), of record are diagnoses of mild degenerative joint disease through the hands as evidenced in an October 2003 VA X-ray report and confirmed by the April 2007 VA examiner. Hickson element (1) is accordingly met for the claims. With respect to Hickson element (2), in-service disease and injury, the Board will separately address in-service disease and in-service injury. With respect to in-service disease, there is no medical evidence of any bilateral hand disease in service or within the one year presumptive period after service for arthritis. Of record is the veteran's October 1968 separation examination, which indicates that clinical evaluation of the upper extremities was normal. The first suggestion of arthritic symptoms in the bilateral hands is contained in the October 2003 X-ray report, 35 years following separation from service. Accordingly, a disease of the bilateral hands is not established in service or within the one-year presumptive period thereafter for arthritis. With respect to in-service injury, the veteran has argued that he injured his hands as a result of the repetitive physical activity of chipping paint in service. See his January 15, 2004 substantive appeal. He has proffered no other theory of entitlement, and the evidence of record does not suggest any. See Robinson v. Mansfield, No. 04-1690 (January 29, 2008), slip opinion at 9 ["the Board is no required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion."] Although the Board has no reason to doubt that the veteran, like many other veterans, may have engaged in tasks involving repetitive motion in service, the record is completely devoid of competent, objective evidence to support his assertion that he sustained any injury thereby. The service medical treatment records are pertinently negative for any reference to complaints pertaining to the veteran's hands. The Board finds it to be particularly significant that there is no mention of an injury to the hands in service by the veteran until he filed his claim in June 2003, over 35 years after he left military service and a decade after he filed his initial claim of entitlement to VA benefits in January 1994. The veteran's initial claim [VA Form 21-526] referred to a number of claimed disabilities (burn residuals, skin disabilities, tinnitus and a cut to the right thumb) but not to arthritis of the hands. See Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]. The lack of any evidence of arthritis or symptoms of arthritis for over three decades after service, and the filing of the claim for service connection 35 years after service and one decade after his initial service connection claim, is itself evidence which tends to show that no injury to the hands was sustained in service. 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]. This finding is supported by the April 2007 VA examiner, who reviewed the veteran's claims folder and determined: It is my opinion that the arthritis seen in the hands is less likely than not due to military service. The rationale is that the military service occurred 35 years earlier. I would certainly expect that if an arthritic condition had been established that long ago that his present condition would be more than "mild" as seen on X-rays. Hickson element (2) has therefore not been met, and the claim fails on this basis alone. With respect to Hickson element (3), medical nexus, the only competent opinion is that of the April 2007 VA examiner, quoted above, which is not favorable to the veteran's claims. The veteran has been accorded ample opportunity to present medical evidence in support of his claims; he has failed to do so. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. To the extent that the veteran himself, or other laypersons such as his attorney, contend that a medical relationship exists between his current bilateral arthritis of the hands and service, their opinions are entitled to no weight of probative value. See Espiritu, supra. Any such statements offered in support of the veteran's claims do not constitute competent medical evidence and cannot be accepted by the Board. See also Cromley, supra. The Board is of course aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. It does not appear that the veteran is specifically contending that he had problems with his hands continually after service. To the extent that such a contention may be read from the record, the veteran has not submitted competent medical evidence of continuous disability since service. As noted above, he was first diagnosed as having arthritis a full 35 years after service. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]. See also Voerth, supra, at 120-1 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Accordingly, Hickson element (3), medical nexus, has also not been satisfied, and the claims also fail on that basis. Conclusion In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for arthritis of the right hand and arthritis of the left hand. Therefore, contrary to the assertions of the veteran's attorney, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. ORDER Service connection for an asbestos-related pulmonary disorder is denied. Service connection for arthritis of the right hand is denied. Service connection for arthritis of the left hand is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs