Citation Nr: 0943470	
Decision Date: 11/16/09    Archive Date: 11/25/09

DOCKET NO.  07-23 106	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUES

1.  Entitlement to service connection for bilateral hearing 
loss. 

2.  Entitlement to service connection for tinnitus. 



REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

C. Ferguson, Counsel




INTRODUCTION

The Veteran had active service from June 1949 to June 1953.

This matter arises before the Board of Veterans' Appeals 
(Board) on appeal from a February 2006 rating decision by the 
above Department of Veterans Affairs (VA) Regional Office 
(RO).  The appeal has been advanced on the Board's docket 
pursuant to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).

The record reflects that the Veteran requested a personal 
hearing before a member of the Board to be held at the RO, on 
his July 2007 VA Form 9.  He was subsequently notified that 
his Travel Board hearing was scheduled for August 5, 2009, in 
July 2009 correspondence.  However, prior to the hearing, the 
Veteran advised that he would be unable to attend and no 
longer wanted a hearing before the Board.  See memorandum 
dated July 21, 2009.  Thus, the Veteran's hearing request is 
withdrawn.  38 C.F.R. § 20.704(e).  


FINDINGS OF FACT

1.  A preponderance of the evidence is against a finding that 
the Veteran's current bilateral hearing impairment as defined 
by 38 C.F.R. § 3.385 is related to his period of active 
military service, to include acoustic trauma therein, and 
against a finding that sensorineural hearing loss, as an 
organic disease of the nervous system, was manifested to a 
compensable degree within one year after separation from 
service.  

2.  A preponderance of the evidence is against a finding that 
the Veteran's current tinnitus is related to his period of 
active military service, to include acoustic trauma therein, 
and against a finding that tinnitus, as an organic disease of 
the nervous system, was manifested to a compensable degree 
within one year after separation from service.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated 
by active military service, nor may it be so presumed.  38 
U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103, 5103A (West 
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009).  

2.  Tinnitus was not incurred in or aggravated by active 
military service, nor may it be so presumed.  38 U.S.C.A. §§ 
1101, 1110, 1111, 1112, 1131, 5103, 5103A (West 2002); 38 
C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 
notice from VA must inform the claimant of any information 
and evidence not of record (1) that is necessary to 
substantiate the claim; (2) that VA will seek to provide; and 
(3) that the claimant is expected to provide.  38 C.F.R. § 
3.159(b)(1) (2009).  This notice must be provided prior to an 
initial unfavorable decision on a claim by the RO.  Mayfield 
v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  In addition, the decision 
of the U.S. Court of Veterans Appeals (Court) in Dingess v. 
Nicholson, 19 Vet. App. 473 (2006), requires more extensive 
notice in claims for compensation, e.g., as to potential 
downstream issues such as disability rating and effective 
date.  

If complete notice is not provided until after the initial 
adjudication, such a timing error can be cured by subsequent 
legally adequate VCAA notice, followed by readjudication of 
the claim, as in a Statement of the Case (SOC) or 
Supplemental SOC (SSOC).  Moreover, where there is an uncured 
timing defect in the notice, subsequent action by the RO 
which provides the claimant a meaningful opportunity to 
participate in the processing of the claim can prevent any 
such defect from being prejudicial.  Mayfield v. Nicholson, 
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Court of Appeals for the Federal Circuit previously 
held that any error in VCAA notice should be presumed 
prejudicial, and that VA must bear the burden of proving that 
such an error did not cause harm.  Sanders v. Nicholson, 487 
F.3d 881 (2007).  However, the U.S. Supreme Court has 
recently reversed that decision, finding it unlawful in light 
of 38 U.S.C.A. § 7261(b)(2), which provides that, in 
conducting review of decision of the Board, a court shall 
take due account of rule of prejudicial error.  The Supreme 
Court in essence held that - except for cases in which VA has 
failed to meet the first requirement of 38 C.F.R. § 3.159(b) 
by not informing the claimant of the information and evidence 
necessary to substantiate the claim - the burden of proving 
harmful error must rest with the party raising the issue, the 
Federal Circuit's presumption of prejudicial error imposed an 
unreasonable evidentiary burden upon VA and encouraged abuse 
of the judicial process, and determinations on the issue of 
harmless error should be made on a case-by-case basis.  
Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In December 2005 correspondence, the RO apprised the Veteran 
of the information and evidence necessary to substantiate his 
claim, which information and evidence that he was to provide, 
and which information and evidence that VA will attempt to 
obtain on his behalf.  In this regard, the RO advised the 
Veteran of what the evidence must show to establish 
entitlement to service connected compensation benefits for 
his claimed disorders and described the types of information 
and evidence that the Veteran needed to submit to 
substantiate his claims.  The RO also explained what evidence 
VA would obtain and would make reasonable efforts to obtain 
on the Veteran's behalf in support of the claims.  (The 
Veteran responded in January 2006 that he had no other 
information or evidence to give VA in support of his claims.)  
Although the Veteran was not advised regarding the elements 
of degree of disability and effective date in said notice 
letter or at any time during the course of this appeal, the 
error does not harm the Veteran because a preponderance of 
the evidence weighs against his claim for reasons explained 
below and no disability rating or effective date will be 
assigned.  Such disposition renders any notice error with 
respect to these elements moot.  Thus, the Board concludes 
that the Veteran was provided with proper VCAA notice prior 
to the February 2006 rating decision that denied the claim by 
way of the December 2005 VCAA notice letter.  

The Board further observes that the RO provided the Veteran 
with a copy of the February 2006 rating decision and the June 
2007 Statement of the Case (SOC), which included a discussion 
of the facts of the claims, pertinent laws and regulations, 
notification of the bases of the decisions, and a summary of 
the evidence considered to reach the decisions.  

In view of the foregoing, the Board concludes that the 
requirements of the notice provisions of the VCAA have been 
met, and there is no outstanding duty to inform the Veteran 
that any additional information or evidence is needed.  
Quartuccio, 16 Vet. App. at 187. 

In regard to VA's statutory duty to assist, the Board notes 
that the Veteran was afforded with an audiological 
examination by a private audiologist in connection with his 
claims in February 2006.  The February 2006 audiological 
examination report includes a medical nexus opinion regarding 
the relative probability of a relationship between hearing 
loss and tinnitus and military service based on review of the 
claims folder and examination and interview of the Veteran.  
Although the examiner did not specifically address the 
Veteran's contentions that he was treated on several 
occasions for ear infections and was exposed to asbestos in 
service that may have caused hearing loss and tinnitus, the 
service records do not support the Veteran's account of in-
service treatment for ear infections or asbestos exposure, 
and his account is not found to be credible, as will be 
explained in greater detail below.  Thus, the examination 
report is not rendered inadequate on such basis.  Upon 
review, the Board finds that the examination report is 
adequate for the purposes of this adjudication. 

The Board further notes that the Veteran's service treatment 
records (STRs) are of record.  Further, post-service 
treatment records adequately identified as relevant to the 
claims have been obtained, to the extent possible, and are 
associated with the claims folder.  In this regard, the Board 
notes that the Veteran reported in a statement received in 
January 2006 that he had received private treatment for his 
hearing problems from Dr. J.R., who was now retired, prior to 
receiving treatment through the VA healthcare system.  He 
explained that the physician cleaned his years approximately 
once a year; however, he essentially had no idea where and 
how to obtain the records, and stated that the records were 
unavailable.  The Veteran again wrote in the July 2007 VA 
Form 9 that he was unable to obtain private treatment 
records.  Because the Veteran has repeatedly indicated that 
his private treatment records are not available for review, 
the Board concludes that no further efforts by VA to obtain 
the records are warranted. 

The Veteran has not made the RO or the Board aware of any 
other evidence relevant to this appeal that needs to be 
obtained.  Based on the foregoing, the Board finds that all 
relevant facts have been properly and sufficiently developed 
in this appeal and no further development is required to 
comply with the duty to assist the Veteran in developing the 
facts pertinent to the claims.  Accordingly, the Board will 
proceed with appellate review.

II.  Facts and Analysis

The Veteran contends that his current bilateral hearing loss 
was caused by acoustic trauma sustained during his period of 
active service in the United States Navy, while serving as a 
machinist's mate.  Primarily, the Veteran asserts that he 
developed hearing problems as a result of repeated exposure 
to military noise such as the loud noise of engines and 
gunfire without wearing ear protection.  He has also 
asserted, in the alternative, that cotton balls were the only 
hearing protection provided by the military during his period 
of service, and that on numerous occasions he sought 
treatment for ear infections caused by the residue left by 
the cotton balls in his ears.  The Veteran further suggests 
that he was exposed to asbestos in service and that asbestos 
fibers possibly filled his ears and caused hearing problems.  
See undated statement received by VA in January 2006 in 
response to the VCAA notice letter.   

Service connection may be granted for disability or injury 
incurred in or aggravated by active military service.  38 
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) 
(2009).  As a general matter, service connection for a 
disability on the basis of the merits of such claim requires 
(1) the existence of a current disability; (2) the existence 
of the disease or injury in service, and; (3) a relationship 
or nexus between the current disability and any injury or 
disease during service.  Hickson v. West, 12 Vet. App. 247, 
253 (1999).  If a condition noted during service is not shown 
to be chronic, then generally a showing of continuity of 
symptoms after service is required for service connection.  
38 C.F.R. § 3.303(b).  Service connection may also 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); 38 C.F.R. § 3.303(d).  

In addition, the law provides that, where a veteran served 
ninety days or more of active military service, and certain 
chronic diseases, such as organic diseases of the nervous 
system (e.g., sensorineural hearing loss and tinnitus), 
become manifest to a degree of 10 percent or more within one 
year after the date of separation from such service, such 
disease shall be presumed to have been incurred in service, 
even though there is no evidence of such disease during the 
period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 
38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be 
diagnosed within the presumption period, it must be shown, by 
acceptable lay or medical evidence, that there were 
characteristic manifestations of the disease to the required 
degree during that time.  Id.

Generally, where the determinative issue involves a medical 
diagnosis or causation, competent medical evidence is 
required.  Grottveit v. Brown, 5 Vet. App. 91 (1993).  This 
burden typically cannot be met by lay testimony because lay 
persons are not competent to offer medical opinions.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  
However, lay evidence can be competent and sufficient to 
establish a diagnosis of a condition when (1) a layperson is 
competent to identify the medical condition, (2) the 
layperson is reporting a contemporaneous medical diagnosis, 
or (3) lay testimony describing symptoms at the time supports 
a later diagnosis by a medical professional.  Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Also, when a 
condition may be diagnosed by its unique and readily 
identifiable features, the presence of the disorder is not a 
determination "medical in nature" and is capable of lay 
observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  
Lay persons can also provide an eye-witness account of an 
individual's visible symptoms.  See Davidson v. Shinseki, 581 
F.3d 1313 (2009) (noting that a layperson may comment on lay-
observable symptoms).

For purposes of applying VA laws, impaired hearing is 
considered a disability when the auditory threshold in any of 
the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 
40 decibels or greater; or when the auditory thresholds for 
at least three of the frequencies 500, 1000, 2000, 3000, and 
4000 Hz 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.  VA regulations, however, do 
not preclude service connection for a hearing loss which 
first met VA's definition of disability after service.  
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Further, 
where a current disability due to hearing loss is present, 
service connection can be granted for a hearing loss 
disability where the veteran can establish a nexus between 
his current hearing loss and a disability or injury he 
suffered while he was in military service.  Godfrey v. 
Derwinski, 2 Vet. App. 352, 356 (1992).

In the present case, the medical evidence of record clearly 
shows that the Veteran currently suffers from a bilateral 
hearing impairment as defined by VA regulation.  38 C.F.R. 
§ 3.385.  

As stated above, the Veteran underwent an audiological 
examination in connection with the claim in February 2006.  
The February 2006 audiological examination report shows that 
the Veteran exhibited pure tone thresholds, in decibels, as 
follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
40
55
60
LEFT
35
40
60
65
70

Speech recognition scores with the Maryland CNC Test were 96 
percent for the right ear and 88 percent for the left ear.  
There is no indication that the audiometric results reported 
in the February 2006 audiological examination report are 
unreliable or otherwise inadequate.    

Also, October 2005 VA treatment records show that the Veteran 
has bilateral hearing loss.  Although his demonstrated pure 
tone thresholds on testing are not specifically reported and 
are only depicted by graph, the audiologist noted that the 
Veteran's audiometric testing showed a mild dropping to 
severe high frequency sensorineural hearing loss bilaterally 
with the left ear slightly worse than the right.  The 
audiologist further wrote that the Veteran had word 
recognition of 92 percent in the right ear and 88 percent in 
the left ear on the Maryland CNC test, which meets the 
definition of a bilateral hearing impairment by VA 
regulation.  

Thus, the above evidence establishes the presence of a 
current bilateral hearing impairment as defined by 38 C.F.R. 
§ 3.385.  See generally McClain v. Nicholson, 21 Vet. App. 
319 (2007) (Court held that the presence of a chronic 
disability at any time during the claims process can justify 
a grant of service connection, even where the most recent 
diagnosis is negative).   

The evidence also establishes that the Veteran currently 
suffers from tinnitus.  The Veteran told the February 2006 
examining audiologist that he had constant bilateral 
tinnitus, and it appears that the audiologist found the 
Veteran's account of tinnitus credible.  The Veteran has also 
submitted several written statements during the course of 
this appeal wherein he has indicated that he currently has 
tinnitus.  See e.g., undated written statement received by VA 
in January 2006.  The Veteran is considered competent to 
report the presence of tinnitus, and there is no indication 
from the record that his account of current tinnitus is not 
credible.  See Charles v. Principi, 16 Vet. App. 370, 374 
(2002) ("ringing in the ears is capable of lay 
observation").  Thus, the presence of current tinnitus is 
also established.  McClain, supra.    

Thus, because the medical evidence establishes that the 
Veteran has a current bilateral hearing impairment and 
current tinnitus, the Board will next consider whether the 
evidentiary record supports in-service incurrence.  

Initially, the Board notes that the Veteran's representative 
indicated in the VA Form 646 that the presumption afforded 
combat veterans under 38 U.S.C.A. § 1154(b) applies in this 
case.  The statutory provisions of 38 U.S.C.A. § 1154(b) 
provide a reduced evidentiary burden for combat Veterans that 
relates to the issue of service incurrence.  See also Huston 
v. Principi, 18 Vet. App. 395, 402 (2004) (holding that the 
provisions of 38 U.S.C.A. § 1154(b) provide a reduced 
evidentiary burden for combat veterans that relates only to 
the issue of service incurrence, and does not relate to 
whether the veteran has a current disability or whether a 
current disability is linked to the incident in service).  
However, the Veteran is not shown to be in receipt of any 
awards, medals, or decorations indicative of combat service, 
and the military records do nor otherwise show his 
participation in combat.  Thus, the presumption afforded 
combat veterans under section 1154(b) does not apply.

The STRs are devoid of any references to hearing problems to 
include hearing loss, tinnitus, or ear infections, and show a 
hearing acuity within normal limits (i.e., 15/15 on the 
whispered voice and spoken voice tests) at the separation 
examination.  Also, the service records contain no evidence 
of asbestos exposure.  

However, the Veteran's DD Form 214 identifies his military 
occupational specialty (MOS) as marine engineer and his most 
significant duty assignment as aboard the U.S.S. Elokomin, an 
auxiliary Naval fleet oiler.  The Veteran has competently 
reported having been exposed to loud noise during his period 
of Navy service.  His competent lay account of exposure to 
military noise is shown to be consistent with the 
circumstances of his service and is deemed credible.  It is 
also noted that the February 2006 examining audiologist wrote 
that it was conceded that the Veteran likely had military 
noise exposure.  In consideration of the foregoing, the Board 
concludes that the Veteran likely suffered acoustic trauma 
during his period of active military service.

Nevertheless, the evidence does not show that the Veteran's 
current hearing impairment and tinnitus are related to his 
period of active military service, to include acoustic trauma 
therein, for reasons explained below.  

After review of the claims folder and examination of the 
Veteran, the February 2009 audiological examiner concluded 
that it is less likely than not that the Veteran's current 
hearing loss and tinnitus are a direct result of his military 
noise exposure.  The examiner explained that, while it was 
conceded that the Veteran likely had military noise exposure, 
he also had significant occupational civilian noise exposure 
while performing construction, logging, and mining work.  The 
examiner noted that the Veteran had told her that he had used 
ear plugs as hearing protection during his period of post-
service occupational noise exposure; however, she clearly 
indicated that she did not find the Veteran's account 
credible, as she referenced the October 2005 treatment record 
wherein the audiologist at that time noted that the Veteran 
reported that he had not worn and did not wear hearing 
protection.  The February 2006 audiological examiner further 
reasoned that there was no record of hearing loss or tinnitus 
in the STRs and the Veteran had significant occupational and 
recreational civilian noise exposure in the more than 
50 intervening years since separation from service.  Because 
the examiner has specialized medical expertise in auditory 
matters and provided a sound rationale consistent with the 
documentation of record to support her conclusion, the Board 
affords the medical opinion great probative value in 
determining whether hearing loss and tinnitus are related to 
active military service.  Furthermore, there is no medical 
opinion to the contrary of record.

In this regard, the Board recognizes that a VA audiologist 
wrote in an October 2005 treatment record that, due to the 
Veteran's significant military noise exposure history, she 
informed him that he may pursue a claim for service 
connection for hearing loss and provided him with information 
on how to proceed with such a claim.  However, that statement 
is not a nexus opinion.  The audiologist did not specifically 
provide an opinion regarding the relative probability of a 
relationship between hearing loss and tinnitus and service.  
She only informed the Veteran that he may pursue a service 
connection claim in light of his reported history of 
significant military noise exposure, after having commented 
that he could not be fitted for binaural amplification at the 
clinic because he was not service-connected for hearing loss.  
Thus, the October 2005 statement by the VA audiologist does 
not establish a nexus relationship between the Veteran's 
claimed hearing disorders and service.   

The Board has also considered the Veteran's lay assertion 
that he was frequently treated for ear infections in service 
and therefore his hearing problems may have resulted from 
those infections.  However, as stated above, the STRs include 
no documentation of such treatment.  The Board notes that it 
is unclear whether the Veteran is competent to report having 
suffered from ear infections in service.  However, even 
assuming that the Veteran is competent to report having 
suffered from multiple ear infections in service, the Board 
finds that the STRs showing no evidence of treatment for ear 
infections, which are dated contemporaneous to his service, 
far outweigh the Veteran's more recent unsupported assertion 
and are afforded more probative value.  See Maxson v. Gober, 
230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that 
service incurrence may be rebutted by the absence of medical 
treatment for the claimed condition for many years after 
service).  

We have also considered the Veteran's contention that he 
first began to have hearing loss and tinnitus in service.  He 
is competent to report the onset of his hearing difficulties 
and tinnitus, but, as stated above, the STRs are devoid of 
any references to hearing problems and show hearing within 
normal limits at the separation examination.  Although the 
representative asserted in the October 2009 Informal Hearing 
Presentation that the whispered voice test is not a valid 
examination for the purpose of measuring high frequency 
hearing loss, the representative also acknowledged that the 
whispered voice test results shown at the separation 
examination could not prove (or disprove) that hearing loss 
existed.

Careful review of the evidence of record shows the first 
evidence of hearing loss as defined by VA regulation dated 
more than five decades after separation.  Indeed, the Veteran 
was advised that he may submit evidence showing treatment for 
hearing problems since service, but has not provided any 
medical evidence to show treatment for any such problems 
prior to 2005, which was 52 years after separation.  He has 
also offered vague and inconsistent statements regarding the 
onset of tinnitus.  For example, in the undated statement 
received in January 2006, the Veteran wrote that he first 
noticed hearing loss and ringing in the ears in service.  
However, he previously told a VA audiologist in October 2005 
that he had experienced intermittent tinnitus for "more than 
20 years."  It is notable that although the Veteran told the 
audiologist of his history of significant military noise 
exposure, he did not specifically relate the onset of 
tinnitus to service at that time.  Later, he told the 
February 2006 audiological examiner that he could not 
remember when his tinnitus had started.  Thus, although the 
Veteran has asserted that he has experienced a continuity of 
hearing loss and tinnitus symptomatology since service, his 
assertions are not supported by the record and are not deemed 
credible.  Thus, they are afforded no probative value.  

The Board has further considered the Veteran's assertion that 
his hearing problems may be related to having particles of 
asbestos fill his ears while sleeping as a result of having 
the asbestos fibers all over the bunks at the end of each day 
during his Navy service.  There is no specific statutory or 
regulatory guidance with regard to claims for service 
connection for asbestos-related diseases.  However, in 1988 
VA issued a circular on asbestos-related diseases which 
provided guidelines for considering asbestos compensation 
claims.  See Department of Veterans Benefits, Veterans 
Administration, DVB Circular 21-88-8, Asbestos-Related 
Diseases (May 11, 1988).  The information and instructions 
contained in the DVB Circular were later included in the VA 
Adjudication Procedure Manual, M21-1, part VI, para. 7.21 
(Oct. 3, 1997) (M21-1).  Subsequently, an opinion by the VA 
General Counsel discussed the development of asbestos claims.  
VAOPGCPREC 4-2000 (April 13, 2000).

The Board notes that the aforementioned provisions of M21-1 
were rescinded and reissued as amended in a manual rewrite 
(MR) in 2005.  See M21-1MR, Part IV, Subpart ii, Chap. 1, 
Sec. H, Para. 29, entitled "Developing Claims for Service 
Connection for Asbestos-Related Diseases," and Part IV, 
Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service 
Connection for Disabilities Resulting from Exposure to 
Asbestos."

VA must analyze the Veteran's claim of entitlement to service 
connection for asbestosis under these administrative 
protocols using the following criteria.  Ennis v. Brown, 4 
Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 
432 (1993).  The latency period for asbestos-related diseases 
varies from 10 to 45 or more years between first exposure and 
development of disease.  The exposure may have been direct or 
indirect, and the extent or duration of exposure is not a 
factor.  M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 
29a.

The manual provisions acknowledge that inhalation of asbestos 
fibers and/or particles can result in fibrosis and tumors, 
and produce pleural effusions and fibrosis, pleural plaques, 
mesotheliomas of the pleura and peritoneum, and cancer of the 
lung, gastrointestinal tract, larynx, pharynx, and urogenital 
system (except the prostate), with the most common resulting 
disease being interstitial pulmonary fibrosis (asbestosis).  
Also noted is the increased risk of bronchial cancer in 
individuals who smoke cigarettes and have had prior asbestos 
exposure.  As to occupational exposure, exposure to asbestos 
has been shown in insulation and shipyard workers, and 
others.  The clinical diagnosis of asbestosis requires a 
history of exposure and radiographic evidence of parenchymal 
lung disease.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, 
Para. 9a-f.

The manual further provides that VA must determine whether 
military records demonstrate evidence of asbestos exposure in 
service, and whether there is pre-service and/or post-service 
evidence of occupational or other asbestos exposure; and then 
make a determination as to the relationship between asbestos 
exposure and the claimed diseases, keeping in mind the 
latency and exposure information pertinent to the Veteran.  
M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h.

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.  M21-1, Part VI, 7.21; DVB Circular 2-88-8, 
Asbestos-Related Diseases (May 11, 1988).

In the present case, it is not certain whether the Veteran 
who has an occupational history that includes work in 
construction is competent to identify the substance he 
reportedly saw all over the bunks during Navy service as 
asbestos.  Even assuming that he is competent to identify 
asbestos, his service records do not demonstrate evidence of 
asbestos exposure.  The Board affords more probative weight 
to the service records than to the Veteran's assertions of 
such exposure.  Moreover, neither hearing loss nor tinnitus 
has been linked by competent medical evidence, to include 
opinion evidence, to asbestos exposure, and neither is a 
disorder typically shown to be associated with asbestos 
exposure.  Thus, service connection for the Veteran's claimed 
hearing loss and tinnitus is not warranted on such basis.  

The Board recognizes that the Veteran has repeatedly asserted 
that he suffers from hearing loss and tinnitus as a result of 
active service.  However, as a layperson he is not shown to 
have the requisite medical expertise to render a competent 
medical opinion regarding the severity and cause of hearing 
loss.  Grottveit v. Brown, 5 Vet. App. 91 (1993); Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992).  Moreover, his 
account of having experienced tinnitus since service, while 
competent, is not deemed to be credible for reasons 
previously explained.  Thus, his opinion lacks sufficient 
probative value.  

Thus, the competent and probative evidence shows that hearing 
loss and tinnitus manifested many years after discharge and 
are not otherwise related to active military service.  
Consequently, the preponderance of the evidence weighs 
against the award of service connection for either disorder.  
Service connection for hearing loss and tinnitus must be 
denied.  

In reaching these conclusions, the Board notes that under the 
provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt 
is to be resolved in the claimant's favor in cases where 
there is an approximate balance of positive and negative 
evidence in regard to a material issue.  The preponderance of 
the evidence, however, is against the Veteran's claims in 
this case, and that doctrine is not applicable.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).




ORDER

Entitlement to service connection for bilateral hearing loss 
is denied. 

Entitlement to service connection for tinnitus is denied. 



___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs