Citation Nr: 0943644 Decision Date: 11/17/09 Archive Date: 11/25/09 DOCKET NO. 06-35 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis). 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for service connection for tinnitus and his application to reopen his previously denied claim for service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis) for failure to submit new and material evidence. The Veteran appeared at the RO and presented evidence and oral testimony in support of his claim at a March 2009 hearing before the undersigned Veterans Law Judge. The transcript of this hearing has been obtained and associated with the claims file. FINDINGS OF FACT 1. The RO denied the Veteran's claim of entitlement to service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis) in an August 1993 rating decision; the Veteran was properly informed of the adverse decision and his appellate rights in an August 1993 letter, and he did not timely appeal this action. 2. Evidence received since the August 1993 RO decision that denied the Veteran's claim of entitlement to service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis) is either duplicative of evidence previously submitted or the evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate this claim. 3. Tinnitus is related to in-service exposure to aircraft engine noise and had its onset during the Veteran's period of active military service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis) are not met, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156, 20.1100 (2009). 2. Tinnitus was incurred in active service. 38 U.S.C.A. § 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS (a.) Factual background and analysis: Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis). With respect to the new and material evidence claim on appeal, under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The pertinent law, regulations, and caselaw has held that VA must at least 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. This notice should be provided prior to initial adjudication of the claim. In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen service connection claims, the claimant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denials. With respect to the issue of whether new and material evidence has been submitted to reopen the Veteran's previously denied claim for VA compensation for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis), a letter dated in April 2008 provided notice of the elements of new and material evidence and the reasons for the prior final denials. This aspect of the criteria of Kent are thus deemed to have been satisfied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board notes that the letter was sent to the Veteran's correct mailing address and was not returned as undeliverable. However, this notice was furnished well after the RO's initial adjudication of the new and material evidence claim in May 2005, and following issuance of the April 2008 notice letter, the RO did not readjudicate the new and material evidence claim with a supplemental statement of the case. In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that notice errors may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the agency of original jurisdiction's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the agency of original jurisdiction) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). As the RO has failed to readjudicate the new and material evidence claim after issuing the April 2008 Kent compliance letter, there exists a defect in the timing of VCCA notice. In Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the United States Supreme Court held that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. In Vazquez-Flores v. Peake, 22 Vet. App. 37, 46 (2008), the United States Court of Appeals for Veterans Claims (Court) noted that to overcome prejudice associated with a pre-adjudicatory notice error, VA must show that the purpose of the notice was not frustrated. This may be done by demonstrating 1) that the claimant had actual knowledge of what was necessary to substantiate the claim and that the claim was otherwise properly developed, 2) that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim, or 3) that the benefit could not be awarded as a matter of law. See also Sanders, 487 F.3d at 889 (reiterating examples noted in Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (Mayfield I). Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim. . . served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores v. Peake, 22 Vet. App. 37, 46 (2008) (vacated on other grounds in Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 2009)). Notwithstanding the aforementioned procedural irregularity, the Board finds that the timing of notice error did not affect the essential fairness of the adjudication and was not prejudicial to the Veteran because he has subsequently been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board concludes that subsequent actions by the Veteran and his representative clearly demonstrate that they have actual knowledge that they were required to first submit evidence which is new and material to the claim for service connection for a chronic pulmonary disability due to asbestos exposure in order to reopen the claim for a de novo review, and that they, in fact, knew what legally constituted new and material evidence towards this end. Specifically, at the March 2009 RO hearing before a traveling Veterans Law Judge from the Board, both the Veteran and his representative expressly acknowledged that the issue on appeal was whether new and material evidence was submitted to reopen the asbestos-related pulmonary disability claim for a new review on the merits (see page 3 of March 2009 hearing transcript). Furthermore, on an October 2009 Appellant's Brief, the Veteran's representative again identified the issue on appeal as one of being whether new and material evidence was submitted to reopen the pulmonary disability claim and then proceeded to present arguments in support of the claim, discussing how the evidence submitted met the legal criteria for new and material evidence, making specific citations to relevant statute, regulations, and caselaw addressing new and material evidence, including 38 U.S.C.A. §§ 5108, 7105(c), 38 C.F.R. § 3.156(a), Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). (See page 3 of the October 2009 Appellant's Brief from Disabled American Veterans.) Therefore, in view of the foregoing discussion, the Board finds that there is no prejudice to the Veteran that would arise from the timing of notice error as the appellant had actual knowledge of what type of evidence was required to reopen his previously denied claim. The Board observes that a May 2006 letter informed the Veteran of how VA determines a disability rating and effective date for awards of VA compensation, in compliance with the holding of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, since the Board has concluded in this decision that new and material evidence has not been submitted to reopen the claim for service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis), any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess, supra. The Board also concludes VA's duty to assist has been satisfied with respect to the new and material evidence claim on appeal. With respect to the new and material evidence issue, the claims file includes all evidence associated with the record at the time of the prior final rating decision of August 1993 that addressed the claim for service connection for a chronic pulmonary disability, claimed as due to asbestos exposure; among these records are the Veteran's service treatment reports and post-service Navy Reserve, VA, and private treatment records for the period from June 1971 to July 1993. Furthermore, all evidence dated since August 1993 that the Veteran has identified as relevant to his application to reopen this claim has been obtained and associated with claims folder; otherwise, VA has conducted attempts in good faith to obtain such evidence. The Board notes that the Veteran has otherwise not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the matters on appeal that VA has not either obtained or made an effort to obtain. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of medical examinations or opinions, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii) (2009). That being said, VA has exceeded its regulatory obligation to assist the Veteran as he was nonetheless provided with a medical examination conducted in late March and early April 2005 in association with his petition to reopen his claim for VA compensation for a pulmonary disability due to asbestos exposure. Therefore, it would be difficult to conclude that VA has somehow failed to assist the Veteran in this regard when it has actually done more for him than would be warranted by law, given the current matter on appeal. The Board finds that the March - April 2005 VA examinations were conducted with discussion of the Veteran's relevant medical history, and that the examiners have provided a detailed rationale for all diagnoses and opinions provided that were based on the Veteran's history and the current clinical observations obtained. The examinations are therefore deemed adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case with respect to whether new and material evidence has been submitted to reopen the claim for service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis), the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board will therefore proceed with the adjudication of the appeal. In general, unappealed rating decisions of the RO and the Board are final. See 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002 & Supp. 2009). In order to reopen a claim there must be added to the record "new and material evidence." See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009). The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, the Veteran's original claim for service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis) was denied on the merits in an August 1993 rating decision. The Board notes that the Veteran's essential contention at the time of his original claim was that he was exposed to asbestos as a crewman serving aboard a United States Navy aircraft carrier during the late 1960s, when use of asbestos insulation and fireproofing over conduits, pipes, and bulkheads aboard ship was commonplace, and that he now has a chronic pulmonary disability as a result of such exposure. The current appeal stems from the Veteran's application to reopen this claim, which was filed in May 2004. The Board notes that the Veteran's theories of entitlement to VA compensation for this disability remain the same as before. As such, he does not present a new theory or basis of service connection that was not previously considered and therefore must submit new and material evidence to reopen a claim before it may be considered on the merits. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008). Thus, the August 1993 RO decision that denied service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis) is final and may not be reopened for purposes of addressing the merits of the claim in the absence of new and material evidence. See 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). The Board notes that 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim. See 38 C.F.R. § 3.156(a) (2009). The credibility of the evidence is presumed for the purpose of reopening. See Justus v. Principi, 3 Vet. App. 510 (1992). The history of the Veteran's claim shows that he filed his original claim of entitlement to service connection for a chronic pulmonary disability due to asbestos exposure, to include asbestosis, in February 1993. Evidence considered at the time of his original claim included the following evidence discussed below. The Veteran's service treatment records for his period of active duty from October 1966 to October 1968, show that his lungs were negative for any abnormalities on physical examinations and chest X-rays performed in October 1965, October 1966, February 1968, and September 1968. Where medical history questionnaires accompanied these examinations, the Veteran denied having any shortness of breath, asthma, chest pain or pressure, chronic cough, exposure to anyone with tuberculosis, or history of coughing up blood. He was discharged from active duty in October 1968. His DD 214 indicates that he served on board the navy aircraft carrier USS Independence (CV-62) as an aircraft handler. The Veteran's relevant post-service clinical history includes the report of a June 1971 Naval Reserve examination for recall to drill status, which shows that his lungs were negative for any abnormalities on physical examinations and chest X-ray, and that he denied having any shortness of breath, asthma, chest pain or pressure, chronic cough, exposure to anyone with tuberculosis, or history of coughing up blood on an accompanying medical history questionnaire. Thereafter, there are no medical records pertaining to any respiratory problems until an August 1991 statement from a private physician, R.B.L., who reported that his review of an X-ray of the Veteran's chest and lungs revealed what, in his opinion, appeared to be "pleural thickening bilaterally consistent with previous asbestos exposure indicating asbestos related disease." The Veteran claimed that the asbestos exposure referred to in Dr. R.B.L.'s report was asbestos insulation and fireproofing used aboard ship during his period of active naval service. He was provided with a VA examination in June 1993, the report of which noted his claimed history of exposure to shipboard asbestos in active duty and the August 1991 statement of Dr. R.B.L. The examination report shows that the Veteran complained of a four-year history of sputum production, moderate dyspnea on heavy exertion, and occasional wheezing secondary to work-related exposure to irritant fumes (including sulfur fumes) associated with his employment in boiler construction. Objective examination shows that his lungs were clear with no wheezes, rales or rhonchi, and the VA examiner's impression was asbestos exposure with a history of pleural thickening. In a July 1993 addendum, the examiner reviewed the reports of chest X- rays indicating clear lungs and a pulmonary function test indicating normal volume and capacity, which were performed on the Veteran in June 1993. After his review, the examiner affirmed his June 1993 impression. The Veteran submitted a photocopy of an undated newspaper article about a request by the United States Navy to have a Federal health agency review naval records to determine whether some naval servicemen diagnosed with sarcoidosis may actually have silicosis associated with exposure to dust clouds of minute silica shards that were aerosolized when sailors ground the non-skid adhesive used on carrier flight deck surfaces in the 1970's. After weighing the probative value of the aforementioned evidence, the RO denied the claim of entitlement to service connection for a chronic pulmonary disability due to asbestos exposure, to include asbestosis, in a August 1993 rating decision. The decision determined that there was no diagnosis of asbestosis, current pleural thickening, or any other current disabling respiratory disorder or active lung disease process. Notice of this denial and his appellate rights was provided to the Veteran in VA correspondence dated August 1993. The Veteran did not appeal the denial and it became final. The Veteran submitted an application to reopen his claim for service connection for a chronic pulmonary disability due to asbestos exposure, to include asbestosis, in May 2004. For evidence to be new and material in this matter, (i.e., relating to unestablished facts necessary to substantiate the claim, and raising a reasonable possibility of substantiating the claim), it would have to be evidence not previously before VA decisionmakers that tends to show that the Veteran had developed a chronic disability of his upper respiratory system in service; or otherwise demonstrates a medical nexus between military service and a post-service diagnosis or diagnoses of a current chronic disability or active disease process affecting his lungs. In the current attempt to reopen the claim, the Veteran submitted written statements reiterating his basic contention that he has a current and active chronic pulmonary disability related to asbestos exposure in military service. In addition to his statements in support of his claim, the Veteran also submitted the evidence discussed below. In an October 1991 letter from a private attorney to the Veteran, the lawyer wrote: "I am sorry to inform you that your test results were positive for your recent tests for asbestos- related disease at Local No. 112 in September. However, you do not have the more serious diseases, such as mesothelioma or some of the related cancers. You have been diagnosed with pleural thickening. Based on (these) findings. . . a lawsuit is. . . being filed on your behalf." In September 1993, a VA physician reviewed the August 1991 private X-rays that Dr. R.B.L. relied upon in arriving at his diagnosis of pleural thickening, bilaterally, consistent with prior asbestos exposure and indicating asbestos related disease. In a report dated September 1993, the VA examiner refuted Dr. R.B.L.'s findings, concluding that the bilateral pleural strictures that Dr. R.B.L. identified as pleural thickening secondary to asbestos exposure were actually "normal variants possibly due to subpleural fat deposits," and that there were "no pleural plaques suggestive of asbestos exposure." VA medical reports dated November 2002 - May 2004 show, in pertinent part, that the Veteran was treated for obstructive sleep apnea and hypopnea. Although some of these treatment notes acknowledge the Veteran's reported exposure to asbestos in service, his lungs were clear on auscultation and no infiltrates were detected on chest X-rays and physical examinations of his upper respiratory system conducted in January 2003, April 2003, May 2003, June 2003, September 2003, and December 2003. The Veteran also denied having a chronic cough, shortness of breath, hemoptysis, or chest pain. The report of a March 2005 VA respiratory system examination and an associated April 2005 pulmonary function test shows that the Veteran reported having a history of exposure to asbestos during service aboard an aircraft carrier, including during shipyard renovation of this carrier. Based on this history, the impression was asbestos exposure. However, no disabling pathology was detected on objective examination. The Veteran complained of having shortness of breath while performing physical activity in the last few years. He also reportedly experienced a slight cough and occasional wheezing during the summer months and produced a small amount of clear sputum in the morning. He denied ever having received inhalers or other such medication for treatment of these complaints. He also denied smoking tobacco. He had a history of sleep apnea but could not tolerate using a continuous positive airway pressure (CPAP) device to treat this condition. Physical examination revealed a normal chest configuration with clear lung fields and bronchial breathing at the bases with no rales, wheezes, or rhonchi detected. His heart displayed regular rate and rhythm with no abnormal sounds. Chest X-rays were negative for any abnormalities. There was no evidence of any acute cardiopulmonary processes or pleural calcifications. The lungs were clear with no masses, focal consolidation, or pleural edema. No apparent pleural diseases and no significant or minor abnormalities were detected. An April 2005 pulmonary function test produced findings indicative of a mild gas exchange defect. However, the report does not indicate that this represented a chronic disability nor does it present any clinical opinion that objectively links it to service or to asbestos exposure. In March 2009, the Veteran submitted oral testimony in support of his claim before the undersigned Veteran's Law Judge. He testified, in pertinent part, that he was exposed to asbestos dust during shipboard service in the late 1960s on the aircraft carrier USS Independence, including while participating in its dockside overhaul at Portsmouth Naval Yard. He claimed that he was first diagnosed with asbestosis in the 1990s, with symptoms of asbestosis first appearing in the 1980s. Post-service, he was employed as a printer and then in the boiler construction industry. In this regard, he denied ever having any post-service exposure to asbestos as a boilermaker as his employers provided him with full body and respiratory system protection against asbestos or exposure to harmful airborne particles. The Board finds that the aforementioned evidence submitted to reopen the claim for VA compensation for service connection for a chronic pulmonary disability due to asbestos exposure, to include asbestosis, is not new and material. The Veteran's written statements contain his basic assertion that he has a chronic upper respiratory disability that is the result of asbestos exposure in service. This is essentially duplicative evidence asserting a theory of service connection that has already been considered on the merits and rejected in the prior final rating decision of August 1993. The clinical evidence submitted, while new in the sense that they have not previously been considered by VA decisionmakers with respect to the claim the appellant seeks to reopen, do not raise a reasonable possibility of substantiating the claim at issue as they merely present medical documentation that the Veteran has been exposed to asbestos according to his own reported history, but do not present any clinical diagnosis of an actual chronic and disabling pathology of his respiratory system that is linked to his military service. If anything, the clinical evidence shows that even if it were factually conceded that the Veteran was exposed to asbestos in service, there is no evidence of a current active disease process of his lungs that can be linked to such exposure. The Veteran's oral hearing testimony asserts that he has been previously diagnosed with asbestosis in the past, but these statements are not substantiated by the clinical records associated with the claims file. One piece of evidence, the September 1993 VA physician's assessment of the August 1991 private X-rays, actually refutes the previously considered statement of Dr. R.B.L. that there was pleural thickening present in the Veteran's lungs. As for the October 1991 private attorney's statement, notwithstanding its references to the Veteran's supposed asbestos-related diseases, the letter draws no relationship between these diseases and the Veteran's military service and, in any case, as the attorney who wrote the letter is not a physician, his statements as to the Veteran's medical condition are of limited probative value for purposes of establishing the actual existence of a medical disability without corroboration by objective clinical evidence. In view of the foregoing discussion, the Board concludes that the current written and oral assertions of the Veteran are cumulative and redundant of the evidence of record at the time of the last prior final denial of entitlement to VA compensation for a chronic pulmonary disability due to asbestos exposure (to include asbestosis) in August 1993, and the medical and other documentary evidence submitted since the time of this prior final rating decision does not raise the possibility of substantiating the current claim for service connection for the aforementioned disability. Therefore, the evidence is not new and material and the petition to reopen the Veteran's claim in this regard is denied. See 38 C.F.R. § 3.156(a) (2009). (b.) Factual background and analysis: Entitlement to service connection for tinnitus. With respect to the Veteran's claim of entitlement to service connection for tinnitus, as the benefit sought on appeal is being granted in full, as discussed below, the Board finds that any error related to the VCAA (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)) on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, there is no need to engage in any analysis with respect to whether the requirements of the VCAA have been satisfied concerning the question of service connection for tinnitus. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In oral hearing testimony presented before the Board in March 2009, and in written statements in support of his claim, the Veteran presents his essential contention that he was exposed to the noise of aircraft engines while serving as an Aviation Bosuns Mate aboard the aircraft carrier USS Independence (CV- 62) during active service in the United States Navy, developed tinnitus symptoms in service, and has had tinnitus ever since. His DD 214 confirms his service as an Aviation Bosuns Mate Third Class (ABH3) aboard the aircraft carrier USS Independence. The Board's research shows that an Aviation Bosuns Mate is a rating in the United States Navy for personnel who are responsible for handling naval aircraft on the flight deck of a carrier and their duties involved launching and recovering these planes and also arranging them on the flight deck. Although the Veteran's service treatment records show no notation of complaints relating to tinnitus during active duty or within the first year following his separation from service in October 1968, his post-service medical evidence includes a March 2004 VA audiological evaluation and treatment report in which the examiner diagnosed the Veteran with tinnitus and noted that the Veteran reported exposure to aircraft engine noise in service and had a history of tinnitus symptoms for approximately 40 years, thereby placing it roughly within his period of military service. The Veteran's treatment reports and hearing testimony indicate that he developed tinnitus symptoms during active duty while serving aboard an aircraft carrier and that he was not provided any hearing protection during naval service but that after service he held careers in the printing and boiler construction industries where he was provided hearing protection, which he used. The Veteran stated that although he developed tinnitus symptoms in service, he did not consider them as warranting treatment at the time. The Veteran's service record shows that his primary occupational specialty during active duty involved working in close proximity to military aircraft in the confined space of a navy aircraft carrier flight deck. The Board's research shows that the operating procedure for naval aircraft involved in carrier take-offs involve having the engines of the aircraft opened to full throttle throughout the launch. Carrier landings involve having the engines opened to full throttle at the final moment just as the landing aircraft touches the flight deck and its tailhook catches the arresting wire to provide the opportunity to take off and make another landing attempt should the tailhook fail to connect with the arresting wire. It is therefore reasonable to assume that the Veteran would be exposed to the noise of aircraft engines operating at full power during both launching and recovery operations. His exposure to acoustic trauma is thus conceded. Notwithstanding the absence of contemporaneous medical evidence showing onset of the Veteran's tinnitus in service, this absence is not an absolute bar where lay evidence is credible and ultimately competent. The Federal Circuit has held that in claims for VA compensation, 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the present case, tinnitus is a syndrome that cannot be objectively verified through clinical testing and whose diagnosis is predicated entirely on the subjective description of symptomatology presented by the affected individual patient. As such, the nexus to service in this case depends upon a determination of the credibility of the Veteran with respect to his account of experiencing onset of tinnitus in active duty. In this regard, the Board finds that the Veteran's personal account of experiencing tinnitus symptoms beginning in service is credible. The March 2004 VA audiological evaluation presents a current diagnosis of tinnitus and the audiologist's statements contained within the report broadly associates the Veteran's tinnitus diagnosis to his account of exposure to acoustic trauma from aircraft engine noise during his period of active duty. Therefore, resolving all reasonable doubt in the appellant's favor, the Board finds that service connection is warranted for tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal in this regard is granted. ORDER New and material evidence having not been submitted, the application to reopen the previously denied claim for service connection for a chronic pulmonary disability due to asbestos exposure (claimed as asbestosis) is denied. Service connection for tinnitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs