Citation Nr: 0843615 Decision Date: 12/18/08 Archive Date: 12/23/08 DOCKET NO. 05-23 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right hand disability. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for asbestosis. 6. Entitlement to service connection for diverticulitis of the colon. 7. Entitlement to service connection for a left hand disability 8. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from June 1961 to June 1964. This matter comes to the Board of Veterans' Appeals (Board) from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied entitlement to service connection for bilateral hearing loss, tinnitus, nerve damage of the right hand, low back injury, asbestosis, diverticulitis of the colon, muscle injury of the left hand, and a right shoulder condition. The issues have been re-characterized to comport to the evidence of record. The issue of entitlement to service connection for a low back disability and asbestosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the competent medical evidence of record is against a finding of a relationship between the current bilateral hearing loss and service. 2. There is no competent evidence of record indicating that the current tinnitus is related to service. 3. Resolving all doubt, the competent medical evidence shows a relationship between the current right hand disability and service. 4. Diverticulitis of the colon was not diagnosed in service or for many years thereafter, and there is no competent medical evidence of record indicating that the current diverticulitis of the colon is related to service. 5. There is no competent medical evidence of record indicating that the current left hand disability is related to service. 6. There is no competent medical evidence that the veteran currently has a right shoulder disability. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service, directly or presumptively. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2008). 3. A right hand disability was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2008); 38 C.F.R. §§ 3.102, 3.303 (2008). 4. Diverticulitis of the colon was not incurred in or aggravated by service. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2008). 5. A left hand disability was not incurred in or aggravated by service. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2008). 6. A right shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in August 2003, and post-adjudication notice by letter dated in April 2006. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. With respect to all of the claims for service connection other than the right hand disability, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection are denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot as to those claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The veteran's service connection claim for a right hand disability has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the veteran could result from this adjudication. See, Bernard v. Brown, 4 Vet. App. 384. 393 (1993). A medical examination was not provided regarding the existence or etiology of the claimed right shoulder disability. VA's duty to assist doctrine does not require that the veteran be afforded a medical examination, however, because there is no competent medical evidence that the claimed disability currently exist. See, McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); 38 C.F.R. § 3.159 (c) (2008). A medical examination was not provided regarding the etiology of the claimed diverticulitis of the colon disability or left hand disability. VA's duty to assist doctrine does not require that the veteran be afforded a medical examination, however, because there is no medical evidence indicating an association between in-service injuries, diseases, or events and the current colon or left hand disabilities. See, McLendon v. Nicholson, 20 Vet. App. at 82-83; Charles v. Principi, 16 Vet. App. 370; 38 C.F.R. § 3.159 (c). VA has obtained service medical records (SMRs), assisted the veteran in obtaining evidence, and afforded the veteran medical examinations and opinions as to the existence and the etiology of claimed hearing loss, tinnitus, right hand, and asbestosis disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Service Connection for a Right Shoulder Disability The veteran seeks service connection for a right shoulder disability. The medical evidence of record does not show present a diagnosis related to the veteran's right shoulder. Additionally, service medical records (SMRs) do not indicate in-service treatment for, or a diagnosis related to, the veteran's right shoulder. The veteran's April 1964 separation examination notes that upon clinical evaluation the veteran' upper extremities were found to be normal. There is no medical evidence of record indicating that the veteran has been diagnosed with a current condition or disability related to his right shoulder. Private medical records dated in November 2004 note that the veteran complained of pain in his shoulders and neck. The treating clinician noted an impression of cervical strain. A second November 2004 private medical treatment record notes that the veteran was involved in a car accident and that his right shoulder and neck pain has resolved. Service connection cannot be granted if there is no present disability. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. In the absence of proof of a present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, without a diagnosed or identifiable underlying condition does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom; Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Although the veteran is competent to report the symptoms that he has experienced, he is not competent to offer an opinion as to matters requiring medical expertise, such as a diagnosis or the etiology of a disease or disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions have been considered they do not outweigh the evidence of record, which does not show any current diagnosis of, or treatment for, a right shoulder disability. See 38 C.F.R. § 3.385 (2008). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a right shoulder disability is not warranted. Gilbert v. Derwinski, 1 Vet App. at 57-58; 38 U.S.C.A. § 5107 (b), 38 C.F.R. § 3.102. B. Service Connection for Bilaterial Hearing Loss and Tinnitus The veteran seeks service connection for bilateral hearing loss and tinnitus. He claims that he is presently suffering from hearing loss and tinnitus as a result of engine noise and machine gun and mortar fire noise that he was exposed to without hearing protection. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2008). Where certain chronic diseases, including sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of separation from service, such disease shall be considered to have been incurred or aggravated by such service, notwithstanding there is no evidence of that disease during service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. The record shows present bilateral hearing loss and tinnitus disabilities. A VA audiological examination was conducted in December 2003. Following audiological testing the veteran was given a diagnosis of mild sensorineural hearing loss of the right and left ears and tinnitus. SMRs do not indicate complaints of, or treatment for, hearing loss or tinnitus during service. The veteran's separation examination dated in April 1964, which included audiological testing, does not note hearing loss or tinnitus. Personnel records show that the veteran's military occupational specialty (MOS) was as a light weapons infantryman. Based on these records and the veteran's credible claims of exposure to noise during service, the veteran's exposure to acoustic trauma in service is conceded. As the record shows present hearing loss and tinnitus disabilities and exposure to acoustic trauma in service, the determinative issue is whether these are related. The favorable evidence consists of an April 2003 private medical opinion from the veteran's physician, which notes that the veteran had been a patient since 1965 and that during that time he was diagnosed with hearing loss. The physician noted that it is his opinion that this condition is likely, or as likely, a contributing factor to his military service conditions. The same physician submitted an opinion dated in November 2003, which notes that the veteran is unable to maintain gainful employment due to his health problems, which are as likely as not due to his military service. The negative evidence consists of a December 2003 VA audiological examination report. The examiner noted that he reviewed the veteran's claim file. The examiner noted that the veteran reported exposure to noise from firearms, mortars, and machinery during service, and factory noise, power tools, pipe fitting, and lawn equipment after service. It was noted that the latter two sources of noise were without hearing protection. The veteran worked on the pipeline for 32 years after service. The examiner then opined that due to the fact that the veteran had normal hearing at discharge it is his opinion that his hearing loss is not related to military noise exposure. The examiner further opined that, because the veteran had normal hearing at discharge and because he did not notice his tinnitus for about 9 years after discharge, the veteran's tinnitus is likely not related to his military noise exposure, but is more likely than not related to his history of civilian noise exposure. The negative evidence outweighs the positive. The veteran's April 2003 private medical opinion regarding hearing loss is speculative. A medical opinion based on speculation, without supporting clinical data or other rationale does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, the April 2003 medical opinion the veteran submitted carries little evidentiary weight because it is "... unsupported and unexplained..." Bloom, 12 Vet. App. at 187. In contrast, the VA examiner provided a rationale for his opinion, noting the absence of hearing loss at separation from service and the timing of the veteran's reported onset of tinnitus. He also noted a review of the veteran's claim file. The opinion of a physician that is based on a review of the entire record is of greater probative value than an opinion based solely on the veteran's reported history. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The November 2003 private medical opinion does not address whether the veteran's bilateral hearing loss or tinnitus disabilities are related to service, but notes only that his "health problems" are due to service. Thus, this opinion is immaterial and irrelevant to the issue of whether the veteran's hearing loss and tinnitus are related to noise exposure during service, and it carries no evidentiary weight. Although the veteran has argued that his current hearing loss and tinnitus are related to noise exposure in service, this is not a matter for an individual without medical expertise. See, Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the veteran's lay assertions and private medical opinions have been considered, they do not outweigh the medical evidence of record, notably the December 2003 VA examination report, which shows that there is no relation between the veteran's current bilateral hearing loss and tinnitus and service. A competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The first contemporaneous evidence of hearing loss of record is well after the one-year presumptive period from discharge from service; thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the claims for bilateral hearing loss and tinnitus; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. C. Service Connection for Diverticulitis of the Colon and a Left Hand Disability The veteran seeks service connection for diverticulitis of the colon and a left hand disability. He claims that during service he cut his left hand and since then it has been tender and sore. Giving the veteran the benefit of the doubt, the record shows current diverticulitis of the colon and left hand disabilities. A May 1991 private medical record notes that the veteran was given a final diagnosis of abdominal pain, probably due to diverticulitis. A September 1992 private treatment report notes that the veteran has left hand swelling and that this probably represents mild arthritis. A June 1994 private medical treatment report notes that the veteran has swelling of his left hand and a history of arthritis. The hand was tender on examination. A September 2002 private medical record notes that the veteran injured his left wrist and, although it is not clear, it appears that an impression of tendinitis of the right or left wrist was given. SMRs indicate that in May 1962 the veteran injured his left hand and that it was sutured. The sutures were removed five days later. Clinical evaluation during the veteran's April 1964 separation examination notes that he had normal upper extremities and no identifying scars or body marks. SMRs do not indicate any in-service treatment for, or diagnosis of, diverticulitis of the colon, or any gastrointestinal conditions. Clinical evaluation during the veteran's April 1964 separation examination notes that he had a normal abdomen and viscera, endocrine system, and genitourinary system. Regardless of the fact that the veteran had an in-service injury to his left hand, there is simply no competent medical evidence that the veteran's current diverticulitis of the colon and left hand disability, if he currently has these conditions, are related to service. The favorable evidence consists of the veteran's contention that his current diverticulitis of the colon and left hand disability are related to service, and the November 2003 private medical opinion, which notes that the veteran is unable to maintain gainful employment due to his health problems, which are as likely as not due to his military service. The November 2003 medical opinion does not address whether the veteran's diverticulitis of the colon or left hand disability is related to service, but notes only that his "health problems" are due to service. Thus, this opinion is immaterial and irrelevant to the issue of whether the veteran's diverticulitis of the colon and left hand disability are related to service, and it carries no evidentiary weight. The unfavorable evidence consists of the fact that the first contemporaneous medical evidence of diverticulitis of the colon and a left hand disability of record are more than 20 years after the veteran was discharged from active service and from when his claimed disease and injury during service occurred. The passage of more than 20 years before any evidence of the disability is of record weighs heavily against a finding that such disability is related to service on a direct basis. See 38 C.F.R. §§ 3.307, 3.309. See Savage v. Gober, 10 Vet. App. 488 (1997). The negative evidence in this case outweighs the positive. Although the veteran has argued that his current diagnoses are related to injuries and diseases in service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Though the veteran's lay assertions and the November 2003 private medical opinion have been considered, they do not outweigh the evidence of record, which shows that the veteran's diverticulitis of the colon and a left hand disability did not develop for many years after service. Nor is there any competent medical evidence of record relating the veteran's current diagnoses with injuries, diseases, or events during service. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and service connection for diverticulitis of the colon and a left hand disability is not warranted. Gilbert v. Derwinski, 1 Vet App. at 57-58; 38 U.S.C.A. § 5107 (b), 38 C.F.R. § 3.102. D. Service Connection for a Right Hand Disability The veteran seeks service connection for a right hand disability. He claims that during service he broke the little finger of his right hand, and that it has been out of shape, painful, and has resulted in decreased grip strength in his right hand. The veteran's wife has stated that the veteran has had limited use of his right hand for over 40 years since he injured it in service. The record shows a present right hand disability. A VA examination was conducted in December 2003. The veteran reported to the examiner that he fractured the middle phalanx in his right little finger when a 30-caliber machine gun fell on his hand. Following a physical examination and x-ray evaluation, the veteran was given an impression of middle phalanx fracture, right little finger, minimally symptomatic. Physical examination revealed isolated nerve, tendon, and vascular testing within normal limits, but that the veteran lacked 5 degrees of full extension in the joint. SMRs dated in February 1963 indicate the veteran had a fracture to the midshaft of the middle phalanx, with slight distraction and early periosteal new bone formation. March 1963 SMRs note that the veteran's finger is still bandaged in a flexed position, following removal of the bandage, x-rays show perfect position of the facture without any definite bridging. He should have gentle physical therapy for the hand to regain motion. As the record shows a present right hand disability and an injury to that right hand in service, the determinative issue is whether these are related. A private medical opinion dated in April 2003, notes that the veteran was a patient of the physician since April 1965. The physician indicated that the veteran had some loss of function in his right hand, and that he was of the opinion that the condition is likely, or is as likely, a contributing factor to his military service condition. In the present case the evidence is favorable to a finding of service connection. 38 U.S.C.A. § 5107(b). The veteran and his wife have presented credible testimony of chronic symptoms related to his finger from service to the present. They are competent to testify as to that which they can experience. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The private physician who provided the positive opinion based his finding, in part, on these chronic complaints. Importantly, it appears that the December 2003 VA examiner diagnosed the veteran with the same injury or disability to his right little finger as the veteran was diagnosed with in his February and March 1963 SMRs. Thus, the evidence indicates that there is an in-service injury to the veteran's right hand, a continuity of symptomology, a competent VA diagnosis of the same injury as is seen in the veteran's SMRs, and a favorable private medical opinion regarding the etiology of the veteran's right hand disability. Therefore, all doubt is resolved in the veteran's favor and service connection for a right hand disability is warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a right hand disability is granted. Entitlement to service connection for diverticulitis of the colon is denied. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for a right shoulder disability is denied. REMAND A. Service Connection for a Back Disability The veteran seeks service connection for a low back disability. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The veteran has a current low back disability. Private treatment records dated in November 2004 note that following diagnostic imaging the veteran was given an impression of chronic degenerative arthritis of L4-L5 and L5-S1, second degree anterior spondylosis of L5 on S1, and osteoarthritis. Additionally, private medical records dated in May and October 1966 note that the veteran had back trouble, however no specific diagnosis related to the back trouble appears to have been given. September 1963 SMRs indicate that the veteran complained of lower back pain. It was noted that the pain was in L4-L5 and that the veteran had slight tenderness in the L4-L5 region. An assessment may have been made, however, the record is illegible. It was noted that the veteran should treat the condition with a heat pad. A private medical opinion dated in April 2003, notes that the veteran was a patient of the physician since April 1965. The physician indicated that the veteran was diagnosed with back pain during this time, and that he was of the opinion that the condition is likely, or is as likely, a contributing factor to his military service condition. The Board finds that the foregoing report to have limited probative value, as it is merely a recitation of the veteran's self-reported and unsubstantiated medical history. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history is not transformed into medical evidence simply because it was transcribed by a medical professional). The current record contains competent evidence of a current low back disability, SMRs indicating an in-service injury to the low back, and a private medical opinion indicating that an injury, event, or disease during the veteran's service may be associated with his current back disability. There is insufficient medical evidence for the Board to decide the veteran's claim and a VA medical examination must be provided. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); See also U.S.C.A. § 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (c) (2008). B. Service Connection for Asbestosis The veteran seeks service connection for asbestosis. He claims that the barracks he slept in contained asbestosis, and stated to a private physician in October 2000 that he was exposed to asbestos during service when he worked in a shipyard and in an engine room removing asbestosis insulation. Claims involving asbestos exposure must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. See M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). Additionally, the Board must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997). VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre- service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. Mere exposure to a potentially harmful agent is insufficient for eligibility for VA disability benefits. The medical evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between the current disability and exposure to asbestos in service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). It is unclear whether the veteran currently has asbestosis. A November 1997 private medical record notes that the veteran was given an impression of reactive airway. A private medical record dated in October 2000 notes that the veteran had pulmonary function testing and a chest x-ray. The veteran reported a long history of working with asbestos during and after service to the physician. An impression of asbestosis as shown by his history of exposure to asbestosis fiber, his history of shortness of breath and cough, as well as findings on his chest x-ray of interstitial changes, was given, and it was noted that the veteran had a final diagnosis of asbestosis. A September 2003 private diagnostic imaging report notes that the veteran has no evidence of asbestosis. A VA examination was conducted in December 2003. The examiner assessed the veteran with no objective findings on the physical examination to support asbestosis, however the pulmonary function test is pending. It was not clear whether the pulmonary function test records were later assessed by the examiner or have been associated with the claim file. An October 2004 private CT scan of the chest report notes that no abnormalities were seen. A private medical opinion dated in April 2003, notes that the veteran was a patient of the physician since April 1965. The physician indicated that the veteran was diagnosed with asbestosis during this time, and that he was of the opinion that the condition is likely, or is as likely, a contributing factor to his military service condition. The Board finds that the foregoing report to have limited probative value, if any, as it is merely a recitation of the veteran's self- reported and unsubstantiated medical history. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history is not transformed into medical evidence simply because it was transcribed by a medical professional). The current record contains some competent evidence that the veteran currently has asbestosis and a private medical opinion indicating that the veteran's service may be associated to his current asbestosis disability. There is insufficient medical evidence for the Board to decide the veteran's claim and a VA medical examination must be provided. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); See also U.S.C.A. § 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (c) (2008). Additionally, it does not appear that the RO developed the veteran's claims according to the provisions of M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). The Board notes that the veteran's personnel records have not been obtained by the RO. These records are relevant in that they may indicate the various duties the veteran performed during service and whether they involved asbestos. To ensure that VA has met its duty to assist the appellant in developing the evidence in support of his claim pursuant to 38 U.S.C.A. § 5103A, and to ensure full compliance with due process requirements, this case must be remanded so that the RO can obtain these records. The appellant is hereby notified that it is his responsibility to report for the examination(s) and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination(s) without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2008). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA medical examination to determine the nature and etiology of any current low back disability. The examiner should conduct a thorough examination of the veteran's low back and diagnose any disabilities found. As to any disability identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disability is related to any injury incurred during active service, in particular, the injury reflected in his SMRs. A complete rationale must be provided for all opinions. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must note and specifically address in his opinion the April 2003 private medical opinion of record and SMRs dated in 1963, indicating that the veteran injured his low back. The examiner should also note the November 2004 private treatment records, which indicate that the veteran was involved in a motor vehicle accident and that he had pain in his neck and upper back region. 2. Contact the National Personnel Records Center or other any other appropriate sources to obtain the veteran's personnel records and any other records deemed appropriate to determine whether the veteran was exposed to asbestosis during service in accordance with M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29. Obtain the pulmonary function test reports referred to in the December 2003 VA examination report. 3. Thereafter, schedule the veteran for a VA medical examination to determine the nature and etiology of any current asbestosis disability. The examiner should conduct a thorough examination of the veteran and state whether the veteran has a diagnosis of asbestosis. If asbestosis is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not that the disability is related to exposure to asbestosis during service. A complete rationale must be provided for all opinions. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must note and specifically address in his opinion the April 2003 private medical opinion of record, and discuss the fact that the veteran has stated that he worked as a pipefitter on the pipeline for 32 years after service. 4. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claims should then be readjudicated. If either of the claims remain denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs