Citation Nr: 0843199 Decision Date: 12/16/08 Archive Date: 12/23/08 DOCKET NO. 06-13 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from October 1967 to October 1969. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a December 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, in part, denied the veteran's claims of entitlement to service connection for asbestosis and bilateral hearing loss. The veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the VA office in San Antonio, Texas on August 21, 2008. A transcript of the hearing has been associated with the veteran's VA claims folder. At the August 2008 hearing, the veteran submitted additional evidence directly to the Board, accompanied by a waiver of initial consideration of this evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2008). Issues not on appeal The December 2003 RO also denied the veteran's service connection claims for diabetes mellitus, hypertension, and post-traumatic stress disorder (PTSD). The veteran filed a notice of disagreement (NOD) as to these issues on January 8, 2004. Subsequent RO rating decisions have since granted these service connection claims, and they are no longer in appellate status. The veteran has not disagreed with the assigned ratings and effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. Thus, the only two issues which are currently in appellate status are the two issues which are listed above and discussed below. FINDINGS OF FACT 1. A preponderance of the medica and other evidence of record supports the conclusions that the veteran does not currently have asbestosis and that he was not exposed to asbestos in service. 2. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's current bilateral hearing loss and his military service. CONCLUSIONS OF LAW 1. Asbestosis was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). 2. Bilateral hearing loss was not incurred in or aggravated by active military service, and such 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, 3.385 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for asbestosis and bilateral hearing loss. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. 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 VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. 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 (2008). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (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. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated May 6, 2003, including evidence of "[a] relationship between your disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in the above-referenced May 2003 letter, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised in the May 2003 letter that VA would assist him with obtaining relevant records from any Federal agency, including records from the military and VA Medical Centers. The veteran was also advised in the letter that a VA examination would be provided if necessary to decide his claim. Additionally, the May 2003 letter informed the veteran that VA would make reasonable efforts to obtain private medical records. Included with the letter were copies of VA Form 21-4142, Authorization and Consent to Release Information, and the letter asked that the veteran complete such so that the RO could obtain private records on his behalf. In a follow-up VCAA letter dated march 20, 2006, the RO informed the veteran as follows: "If you have any information or evidence that you have not told us about . . . please tell us or give us that evidence now." The veteran was thereby provided with the "give us everything you've got" notice formerly contained in 38 C.F.R. § 3.159 (b). [However, the Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments [which apply to applications for benefits pending before VA on, or filed after, May 30, 2008], among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claims. See 38 C.F.R. § 3.159(b)(1).] Finally, there has been a significant Court decision concerning the VCAA which is pertinent to the veteran's claims. 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 claim is comprised of five elements, 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1) is not at issue, and the veteran was provided appropriate notice as to elements (2) and (3) as detailed above. The veteran was provided specific notice as to elements (4) and (5), degree of disability and effective date, in the March 20, 2006 letter from the RO. In any event, because the veteran's claim is being denied, elements (4) and (5) are moot. The Board notes that the veteran was not provided complete notice of the VCAA prior to the initial adjudication of his claims in December 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, following the issuance of the March 2006 Dingess letter, the veteran was allowed the opportunity to present evidence and argument in response. The veteran's claims were readjudicated in the January 2007 supplemental statement of the case (SSOC). See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. The veteran has pointed to no prejudice or due process concerns arising out of the timing of the VCAA notice. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. There is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case as to these issues. Therefore, 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 (2008). 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, service medical and personnel records, lay statements, and VA and private outpatient treatment records have been associated with the claims folder. Additionally, the veteran was afforded a VA audiological examination in June 2005, and VA pulmonary examinations in September 2005, February 2006, and November 2006. The Board notes that at the August 2008 hearing the undersigned Veterans Law Judge granted the veteran's request for a 60 day continuance to obtain and supply more evidence of private medical treatment. The veteran submitted new evidence, accompanied by a waiver of initial consideration of this evidence by the AOJ, within the 60 day period provided. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2008). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has also retained the services of a representative, and testified before the Board in August 2008. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. 1. Entitlement to service connection for asbestosis. Relevant law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2008). 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). Essential to the award of service connection is the first Hickson element, existence of a disability. Without it, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) [noting that service connection presupposes a current diagnosis of the claimed disability]; see also Chelte v. Brown, 10 Vet. App. 268 (1997) [observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection]. 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 Veterans 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 As detailed above, in order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), current diagnosis, there is conflicting evidence regarding the current existence of asbestosis. Arguably in the veteran's favor are the findings of Drs. R.A.H. and R.C.B. In November 2001, Dr. R.A.H. evaluated a chest X-ray of the veteran and indicated that the veteran had "[b]ilaterla (sic) pleural disease consistent with asbestos related disease." In January 2003, Dr. R.C.B. also evaluated the veteran's chest X-rays. His impression was "[a]sbestos by evidence of minimal pleural inflammatory process on chest x- ray . . . . Also of record is a July 2006 statement of Dr. P.A.P. that it was "medically probable that the patient has asbestos- related disease based on the exposure the patient had while working as a stevedore." See the July 11, 2006 letter from Dr. P.A.P., M.D. It does not appear that Dr. P.A.P. reviewed any clinical evidence and based his impression of asbestos related disease on the veteran's report of asbestos exposure. This opinion carries no weight of probative value. See 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"]; see also Elkins v. Brown, 5 Vet. App. 474, 478 [rejecting medical opinion as "immaterial" where there was no indication that the physician reviewed the claimant's service medical records or any other relevant document that would have enabled him to form an opinion on service connection on an independent basis]. Contrary to these findings are numerous radiology reports as well as opinions of September 2005, February 2006 and November 2006 VA examiners, who assert that the veteran shows no signs of asbestosis. The Board will discuss each in turn. From August 2003 to February 2006, the veteran underwent numerous chest X-rays at the VA hospital in San Antonio, all of which were pertinently negative for asbestosis. Specifically, an August 2003 VA treatment record indicated that the veteran's chest X-ray specifically ruled out asbestosis. A December 2003 VA treatment report did not indicate asbestosis or asbestos-related pleural disease. A June 2005 VA examination indicated that the veteran's chest x-rays showed "[t]he pleura, soft tissues and bony architectures are within normal limits." Additionally, X- rays taken at the veteran's September 2005 VA respiratory examination indicated "[n]o radiographic evidence of asbestosis or asbestos related pleural disease." The veteran underwent two additional chest X-rays in 2006. The first, taken by Dr. K.S.R. in May 2006, indicated "subtle pleural thickening" but "no acute cardiopulmonary abnormality . . . essentially normal chest for age." See the May 3, 2006 radiology report of Dr. K.S.R., M.D. The second, taken in November 2006 by Dr. P.V.B., was also pertinently negative for asbestosis. Crucially, Dr. P.V.B.'s radiology report indicated that "[n]o pleural or diaphragmatic plaques are identified," and the impression was "unremarkable." See the November 8, 2006 radiology report of Dr. P.V.B., M.D. The September 2005 VA examiner conducted a thorough respiratory examination did not conclude the veteran had asbestosis. The examiner indicated that x-rays "showed no evidence of asbestos disease". Similarly, the February 2006 VA examiner concluded that there was no evidence of pulmonary asbestosis "as multiple chest X-rays performed . . . have shown no radiographic evidence of asbestosis or asbestos-related pleural disease and pulmonary function tests [PFTs] have been normal." See the February 2006 VA examiner's report, page 3. The veteran was afforded a third VA examination on November 9, 2006. The VA examiner pointed out that though Dr. R.A.H. gave his impression of asbestosis based on "minimal pleural inflammatory process on the chest x-ray," at the time "both physical exam and pulmonary function tests were normal." Additionally, the November 2006 VA examiner indicated that PFTs taken by Dr. P.A.P. showed the same normal results as the tests taken by Dr. R.A.H. in 2003. See id. At the examination, the veteran declined a chest X-ray and a CT scan. 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. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, consistent with Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), 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). 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). After reviewing the record, and for reasons stated immediately below, the Board finds the opinions of the September 2005, February 2006, and November 2006 examiners, who found no evidence of asbestosis, to be of greater probative value than the other opinions of record to the contrary. First, and most importantly, the VA examiners based their opinions as to the lack of asbestosis on a review of the veteran's medical records and entire claims file, incorporating previous medical findings (both VA and private) into their analyses. In contrast, Drs. R.A.H., R.C.B., and P.A.P. fail to indicate a longitudinal review of the veteran's pertinent medical records. Secondly, none of the three private physicians offer a rationale or basis for his respective finding of asbestosis or asbestos-related disease. In particular, Dr. P.A.P., who had the benefit of looking at numerous negative X-ray reports (including the veteran's most recent 2006 X-rays mentioned above), failed to address any discrepancy in impressions or diagnoses among examiners. The failure of Dr. P.A.P. to explain diagnoses of asbestosis or asbestos-related disease in light of the negative evidence weights 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, supra. Unlike the opinions of Drs. R.A.H., R.C.B., and P.A.P., the opinions of the September 2005 and February and November VA examiners appear to be based on a review of the veteran's entire medical history. These opinions are also well- reasoned and draw on specific aspects from the veteran's medical history, including his lack of any treatment for pulmonary problems or receipt of pulmonary medications. As such, the Board finds their opinions to be highly probative. The opinions of Drs. R.A.H., R.C.B., and P.A.P. are not adequately explained and are completely at odds with the remainder of the medical tests and opinions of record. Based on the entire record, the Board gives these opinions little weight of probative value. The only other evidence in the claims file alleging that the veteran has asbestosis is the veteran's own statements. It is well settled, however, that lay persons without medical training, such as the veteran, 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 (2008) [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 are accordingly lacking in probative value. The veteran has recently submitted evidence of September 2000 surgery performed by Dr. A.S. to treat the veteran's sleep apnea. The veteran claims that the Dr. A.S. found black fibrous material in his sinuses. See the veteran's August 20, 2008 statement; see also the August 2008 hearing transcript, pages 22-26. Although the surgical report does indicate that "diseased mucosa" was removed from the veteran's sinus, the report fails to indicate any impression, observation, or diagnosis of asbestosis or asbestos-related disease. See the September 14, 2000 surgical treatment report of Dr. A.S., M.D. The veteran's statements as to the surgical findings amount to non-probative lay evidence as to a medical matter. Accordingly, the competent medical evidence of record does not indicate the presence of asbestosis. Hickson element (1) therefore 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]. With respect to Hickson element (2), in-service disease or injury, the Board will separately address disease and injury. Concerning in-service disease, the veteran's service medical records do not indicate that asbestos-related disease was present in service. His August 1969 separation physical examination report was pertinently negative with respect to any disease affecting the veteran's respiratory system. During service, he voiced no complaints pertaining to chest or lungs. Therefore, in-service incurrence of disease is not shown. With respect to in-service injury, the veteran contends that he was exposed to asbestos while loading and unloading cargo from ships in Okinawa. He states that he worked as a cargo handler on ships while stationed in Okinawa, and that he was purportedly exposed to asbestos when crates broke open. See the veteran's May 27, 2003 Statement in Support of Claim and the August 2008 hearing transcript, pages 13-21. The veteran's presentation hinges on his contention that he was exposed to asbestos in service. The veteran has stated that "some of those crates on the bottom were completely destroyed and we had to go in there and clean it up . . . you could see the particles all over the place." See the August 2008 hearing transcript, page 21. The veteran's DD Form 214 confirms that his specialty in the Army was "cargo handler" and his related civilian occupation was "stevedore." His service personnel records note that the veteran served in Okinawa from July 14, 1968 to October 1, 1969, and during that time served principally as a winch operator, with the specialty title "cargo handler." See the veteran's Record of Assignments. Further, the veteran has submitted photographs of himself working in the cargo decks of ships while in service. See the photographs submitted by the veteran at the August 2008 hearing; see also the August 2008 hearing transcript, page 17. The Board thus has no cause for disbelieving that he loaded and unloaded cargo while serving in Okinawa. However, and crucially, the veteran has presented no evidence, other than his own statements, that he was exposed to asbestos fibers thereby. His service medical records do not refer to any asbestos exposure, nor is there any reference to respiratory or pulmonary difficulties. Nor is there any other evidence which suggests in-service asbestos exposure. Finally, the veteran did not serve aboard ship or in any occupation which has been linked with exposure to asbestos, such a pipefitter. Although he was a stevedore, he was not a "shipyard worker", i.e. he did not participate in the construction of vessels. In short, the veteran's contention that he was exposed to asbestos fibers while loading and unloading cargo from ships in Okinawa amounts to mere speculation on his part and is not substantiated by any competent objective evidence in the file. For the reasons expressed above, the Board has found that the evidence does not support a conclusion that the veteran was exposed to asbestos in service. Hickson element (2) has therefore not been met, and the claim fails on this basis also. Finally, with respect to Hickson element (3), medical nexus, Drs. R.C.B. and P.A.P. both attribute the veteran's claimed current asbestosis to exposure to asbestos while in service. After the veteran was originally declined service connection by the December 2003 RO, the veteran submitted a statement from Dr. R.C.B. indicating the following: Since I have seen him [the veteran], he has provided me with additional information concerning his past history. At the time of my initial evaluation, I felt that his asbestosis was in best medical probably (sic) work related. He has provided me additional information concerning exposures when he was in the military in Okinawa, and I now feel in best medical probability that these exposures would account for his unequivocal asbestosis. See the January 16, 2004 letter from Dr. R.C.B., M.D. Additionally, as mentioned above, Dr. P.A.P. stated that it was "medically probable that the patient has asbestos- related disease based on the exposure the patient had while working as a stevedore." See the July 11, 2006 letter from Dr. P.A.P., M.D. Drs. R.C.B. and P.A.P. base their medical nexus opinions on the veteran' self reported history of in-service asbestos exposure. Therefore, their opinions are entitled to no greater weight than are the reports of the veteran himself. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ["a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"]; see also Godfrey v. Brown, 8 Vet. App. 113, 121 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. In Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the Court, citing its decisions in Swann and Reonal, reaffirmed that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. The Board may not, however, disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. In this case, although Drs. R.C.B. and P.A.P. referred to asbestos exposure in service, it is clear that this is merely a recitation of the veteran's own contention. Crucially, the remainder of the veteran's medical history, before and during service [indicating no instances of asbestos exposure or respiratory complaints], as well as the consistently negative findings of the VA examiners after service, were not mentioned. Thus, these opinions carry little weight of probative value. Accordingly, Hickson element (3) has not been met. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for asbestosis. Accordingly, the benefit sought on appeal is denied. 2. Entitlement to service connection for bilateral hearing loss. Relevant law and regulations The law and regulations generally pertaining to service connection have been set forth above and will not be repeated. Service connection - hearing loss For certain chronic disorders, including sensorineural hearing loss, 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2008). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2008). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley, supra. Continuity of symptomatology When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2008); see also Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). In Voerth v. West, 13 Vet. App. 117, 120 (1999), the Court stated that in Savage it had clearly held that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus. Analysis As detailed above, in order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson element (1), current disability, a June 2005 VA audiological examination found that the veteran "has a moderate sensorineural loss of sensitivity from 3000 to 4000 hertz in both ears." See the June 2005 VA examiner's report, page 2. Therefore, Hickson element (1) is satisfied. With respect to Hickson element (2), in-service disease and injury, the Board will separately address disease and injury. Concerning in-service disease, the veteran's service medical records were completely normal with respect to the veteran's ears and hearing. His August 1969 separation physical examination, including audiology testing, was pertinently negative. During service, he voiced no complaints pertaining to hearing loss or ringing in his ears. Hearing loss was initially medically identified in an April 2003 private treatment record [see the April 16, 2003 treatment report of Dr. G.G., M.D.], and confirmed in a June 2005 VA audiological examination, decades after service, and long after the end of the one year presumptive period found in 38 C.F.R. § 3.309(a). Therefore, in-service incurrence of disease is not shown. With respect to in-service injury, the veteran in essence contends that exposure to noise from machine guns and grenades caused injury to his ears, while serving in the infantry during his service in Korea. See the August 2008 hearing transcript, pages 2-12; see also the veteran's May 31, 2005 written statement, with attached picture. The veteran's service medical records confirm the veteran was stationed in Korea from April 9, 1968 to July 13, 1968. Additionally, information provided by the Department of the Army confirms that the veteran's infantry unit experienced hostile fire. Hickson element (2), exposure to hazardous levels of noise, is therefore satisfied. With respect to crucial Hickson element (3), medical nexus, the veteran was afforded a VA audiological examination in June 2005. The VA examiner reviewed the veteran's claims file, acknowledged the veteran's history, and stated "it is the opinion of this examiner, [that] his hearing loss is not related to noise exposure during military service." See the June 2005 VA examiner's report, page 2. The VA examiner based his opinion on the fact that the veteran's service medical records indicated hearing threshold levels within normal limits. There is no competent medical evidence contrary to the VA examiner's opinion. The veteran submitted a May 2006 audiological treatment record from Dr. P.A.P. in support of his claim. However, that report only confirms the existence of a current disability [Hickson element (1)] and highlights that the veteran was exposed to loud noises while serving in the infantry [Hickson element (2)]. Both of these elements are not in dispute. Nowhere does Dr. P.A.P. suggest that the veteran's hearing loss was a result of his service in the military. Accordingly, Dr. P.A.P.'s report also lacks the crucial medical nexus opinion necessary for the satisfaction of Hickson element (3). To the extent that the veteran himself contends that such a relationship exists, it is now well established that laypersons without medical training, such as the veteran, are not competent to comment on medical matters such as etiology. See Espiritu, supra. To some extent, the veteran presents an argument based on continuity of symptomatology, that is that he had hearing loss in service and continuously thereafter. The Board is of course aware of the provisions relating to continuity of symptomatology, discussed above. See 38 C.F.R. § 3.303(b) (2008). However, there is no competent medical evidence supporting this argument. As was noted above, hearing loss was not identified in service and it was initially diagnosed decades after service. In the interim, there were no complaints of, or treatment for, hearing loss. Supporting medical evidence is required. See Voerth, supra [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. See Maxson 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]. Accordingly, service connection may not be established via continuity of symptomatology under 38 C.F.R. § 3.303(b). The veteran has been accorded ample opportunity to supply medical opinion evidence in support of his claim. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. Accordingly, Hickson element (3), medical nexus, is not met and the claim fails on this basis alone. 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 bilateral hearing loss. Hickson element (3) has not been met. Accordingly, the benefit sought on appeal is denied. ORDER Entitlement to service connection for asbestosis is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs