Citation Nr: 1027508 Decision Date: 07/22/10 Archive Date: 08/02/10 DOCKET NO. 02-04 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD); asbestosis. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for pulmonary hypertension. 6. Entitlement to service connection for vascular hypertension. 7. Entitlement to service connection for sinusitis. 8. Entitlement to a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from December 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of October 2001 (right knee disorder) and June 2008 (remaining claims) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned regarding service connection for a right knee disorder at a hearing in July 2002. A transcript of the hearing is of record. In April 2003, the Board issued a decision affirming the RO's denial of the appellant's claim of service connection for a right knee disorder. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (the "Court"). In a March 2004 order, the Court vacated the Board's April 2003 decision and remanded the decision to the Board for further action consistent with its order. Thereafter, in September 2004, the Board remanded the case with instructions that the RO readjudicate the appellant's claim based on evidence received since a Statement of the Case was issued in March 2002. The RO complied with the Board's remand by issuing a Supplemental Statement of the Case in January 2005 and subsequently referred the case to the Board. The Board then remanded the appeal once again in November 2005 after receiving additional evidence from the appellant absent a waiver of RO consideration. The RO issued another Supplemental Statement of the Case in January 2006 and certified the case once again to the Board for appellant review. In March 2006, the appellant's former attorney submitted a motion for a new hearing before the Board of Veterans' Appeals, which was granted in July 2006. This hearing was scheduled for November 2006. However, neither the appellant nor his former counsel appeared. As such, the Board viewed the appellant's request for a BVA hearing as being withdrawn. After reviewing all evidence of record, the Board subsequently issued a decision denying the appellant's claim of entitlement to service connection for a right knee disorder in December 2006. The appellant appealed that decision to the Court. In June 2008, the Court vacated and remanded the Board's December 2006 decision in light of a Joint Motion to Remand submitted by the parties. See June 2008 Joint Motion for Remand ("Joint Motion to Remand"); June 2008 Court order. As such, the appeal has been returned to the Board for compliance with the instructions set forth in the June 2008 Joint Motion to Remand. The case was remanded in November 2008 to obtain additional records as instructed in the Joint Motion to Remand. A review of the record indicates that the Board's directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of service connection for bilateral hearing loss and tinnitus and entitlement to TDIU are being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran does not have a right knee disorder that is causally or etiologically related to his military service. 2. The Veteran does not have COPD or asbestosis that is causally or etiologically related to his military service. 3. The Veteran does not have pulmonary hypertension that is causally or etiologically related to his military service. 4. The Veteran does not have vascular hypertension that is causally or etiologically related to his military service. 5. The Veteran does not have sinusitis that is causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. The Veteran does not have a right knee disorder that is the result of disease or injury incurred in or aggravated during a qualifying period of military service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2009). 2. The Veteran does not have COPD or asbestosis that is the result of disease or injury incurred in or aggravated during a qualifying period of military service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 (2009). 3. The Veteran does not have pulmonary hypertension that is the result of disease or injury incurred in or aggravated during a qualifying period of military service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2009). 4. The Veteran does not have vascular hypertension that is the result of disease or injury incurred in or aggravated during a qualifying period of military service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2009). 5. The Veteran does not have sinusitis that is the result of disease or injury incurred in or aggravated during a qualifying period of military service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim 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 and 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 claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in June 2001, October 2004, May 2007, and August 2007, before the AOJ's initial adjudication of the claims. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the Veteran's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The May 2007 and July 2007 notifications apprised the Veteran of the criteria for determining disability ratings and the assignment of effective dates. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records, and secured VA examinations in furtherance of the right knee disorder claim. The National Personnel Records Center (NPRC) searched, but was unable to obtain STRs from Camp Pieri in Giessen, Germany and Lindsey Air Station, Wiesbaden, Germany. The Veteran was apprised of the inability to obtain the records in correspondence dated in August 2009. The Board notes that a review of the record indicates that the Veteran filed for benefits from the Social Security Administration (SSA) prior to November 2005. There is no indication that the Veteran was awarded benefits, nor has the Veteran or his representative contended that any records from SSA would be relevant to his claims. In this case, although the issue of service connection for a right knee disorder was the subject of a Joint Motion for Remand in 2008, and the remainder of the claims were filed in 2007, there has been no indication from the Veteran that there are any relevant SSA records. Accordingly, a remand to obtain the records is unnecessary and would serve to cause undue delay. VA opinions with respect to the right knee disorder were obtained in January 2003 and September 2009. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the Board finds that the VA opinions obtained in this case were sufficient, as they were predicated on a full reading of the VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record, the statements of the appellant, and provide explanations for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that medical opinions on the remaining questions of service connection are not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that the Veteran suffered an event, injury or disease in service, or during any pertinent presumptive period, or that his current disabilities may be associated with his service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. II. The Merits of the Claims The Veteran contends that he has a right knee disorder, COPD, pulmonary hypertension, vascular hypertension, and sinusitis that are related to his military service. Law Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases, including arthritis and hypertension, may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2009). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that a injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b) (2009). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3- 2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre- existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the pre-existing disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the pre-existing disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2009); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Analysis Right knee disorder The Veteran's STRs show several complaints related to his right knee. A pre-induction report of medical history dated in September 1965 shows that he checked "yes" to whether he ever had, or presently had, a trick or locked knee and bone, joint, or other deformity. He also checked "yes" to whether he ever had, or had been advised to have, any operations. He wrote that he had been advised to have his right knee checked since he had injured it when he was small and then re-injured it while participating in track. He also checked "yes" to whether he had ever treated himself for illnesses other than minor colds and wrote "knee injury." The examiner wrote that the Veteran had a trick right knee from a football injury. There was buckling and swelling, no locking, and that the Veteran had pain over the tibial tubercle in the past. Examination was within normal limits. A September 1965 medical examination shows that the Veteran had abnormal lower extremities; the Veteran had a prominent right tibial tubercle, ligaments intact, NCD (not considered disqualifying), McMurray's sign was negative. A treatment record dated in January 1966 shows that the Veteran hit his right knee against a post, and that an ace bandage had been applied. An August 1966 treatment record from the orthopedic clinic indicated that the Veteran's cast had been repaired, but did not note the location of this cast. A subsequent note dated 10 days later in August 1966 noted that the Veteran had old Osgood-Schlatter's disease, had a re-injury and had been in a cast for 3 weeks. The Veteran was noted to be currently asymptomatic, and should perform quadriceps exercises. He was advised to return on an as-needed basis. A treatment record dated in April 1967 indicates that the Veteran needed a medical profile. It was noted that the Veteran had a new first sergeant who made him stand up for long periods and march. He was noted to be limping, and was sent to the orthopedic clinic for evaluation later that same day. The report of the orthopedic consultation indicated that the Veteran had done well until recent field problems, and was having pain in the old Osgood-Schlatter again. It was noted that a profile change was needed. No further medical evidence in service is of record until the time of the Veteran's report of medical history at discharge in July 1967. At that time, he again reported that he had had, or currently had, a trick or locked knee. The examiner noted that the Veteran had a trick knee associated with football that only bothered him during athletics. The Veteran denied all other significant medical or surgical history. The discharge examination shows that the Veteran's lower extremities were normal; no right knee abnormality was noted. The Veteran was afforded a VA general medical examination in December 1998 in connection with a nonservice-connected pension claim. The Veteran reported that he had no complaints, no injury in the military, and no injury prior to entering the military. His musculoskeletal system was found to be normal. The Veteran did not make any complaints related to his right knee and no right knee disorders were diagnosed. The Veteran testified at his hearing in July 2002 that he injured his right knee in a fall while running track in high school in 1964, prior to his entry onto active duty. He testified that he self-treated this injury with ice packs and rest, and did not see a doctor for treatment. The Veteran testified that he had no problems with his knee in boot camp, but injured it in Germany when he banged the knee against a post during a field obstacle course. He reported that he was taken by medics to a clinic where his knee was wrapped in an Ace bandage. He testified that he was placed on light duty for 3 or 4 weeks, and had his knee placed in a cast for approximately 3 weeks in 1966 following some sort of re-injury to the knee. He stated that his knee was not responding to treatment, so in April 1967 he saw his doctor to get a new profile, which he described as a new job. He reported that he had sustained no new injuries to his right knee since he left the military in July 1967. He also stated that the notation about a football injury was in error, as he had never played football. When asked about any post-service treatment, the Veteran testified that he did not seek any treatment upon discharge because his knee was not really bothering him, and he further stated that he had never sought any treatment for his right knee at any time since discharge. When asked if he considered the in-service incident in which he banged his right knee against a post as a new injury, separate and distinct from his pre-service track injury, he replied "Well I don't know if you'd call it a different injury, it's the same injury that never really healed." The Veteran was afforded a fee-based examination in January 2003. The claims file was reviewed. The examiner reported the Veteran's medical history, as provided by the Veteran and his service treatment records. Physical examination revealed normal strength in both knees, a full range of knee motion in both knees, without any complaints of pain, and no right knee instability, subluxation or dislocation. X-rays of the right knee revealed no evidence of any fracture, dislocation, calcified loose bodies, or arthritic changes. The only abnormality noted was mild swelling in the right tibial tubercle with subjective pain in the right knee over the tibia tubercle. X-rays confirmed the tibial tubercle in the right knee was irregular in size and enlarged, protruding 1 centimeter from the surface. This abnormality was considered mild. The examiner opined that the only right knee disorder present was chronic right knee tibial tubercle bursitis with ossicle. The examiner also opined that the Veteran's right knee disorder preexisted his military service. With regards to the September 1965 pre-induction report and the August 1966 treatment record, the examiner opined that the significance was that the condition pre-existed induction or active duty. It was apparently asymptomatic. The examiner further opined that the medical evidence did not show a worsening of the preexisting right knee disorder in service. The examiner's rationale is that there was no evidence. The examiner additionally opined that any worsening of the preexisting right knee disorder was due to natural progress of the preexisting right knee disorder. The examiner concluded that it was not likely that the current right knee disorder was related to any incident of military service. X-rays of the Veteran's right knee in March 2005 showed findings consistent with calcific tendonitis on the left at the insertion of the quadriceps tendon to the superior aspect of the patellar; and findings consistent with the Veteran's history of previous trauma at the right anterior tibial eminence in the region of the insertion of the patella tendon. The previous trauma referred to was not specified. A MRI of the Veteran's right knee in March 2007 revealed medial meniscal degenerative changes with probable undersurface tear of the posterior torn. A letter from A.L., M.D. dated in June 2007 shows that he opined that the Veteran's right knee injury "impairs" from ambulation and standing. He opined that the Veteran's disorder was service-connected. No rationale for the opinion was provided, nor did Dr. A.L. address the information concerning the right knee in the Veteran's service treatment records. A VA medical opinion was obtained in September 2009. The Veteran's claims file was reviewed. The examiner listed the Veteran's current right knee disorders as chronic right knee tibial bursitis with ossicle and Osgood-Schlatter condition; and degenerative arthritis with meniscal tear. The examiner opined that the evidence of record indicated that the Veteran had a right knee disorder that preexisted his active duty military service. The examiner opined that the September 1965 pre- induction examination report and the August 1966 treatment record revealed the significance that the old Osgood-Schlatter disease was present on the pre-induction physical and before entering active duty. The examiner opined that there was no evidence of the worsening of the preexisting condition in service. The examiner's rationale was that the worsening of the condition was due to natural progress of the degeneration of the preexisting Osgood-Schlatter disease. The examiner concluded that it was not likely that the current right knee disorder was related to any incident in service. The examiner's rationale was that by his own admission, the Veteran had the injury as noted but after active duty he worked in construction, then in insulation activities, and then as a painter. Through all of those 20 odd years, the Veteran reported that he never had reinjury to his knee, yet he did not report to the VA for treatment, nor was there any evidence of civilian orthopedic treatment to his knee until lately. As discussed above, the Veteran's September 1965 pre-induction examination shows that the Veteran had abnormal lower extremities; the Veteran had a prominent right tibial tubercle. Since the Veteran's right knee was not of sound condition at enlistment, the Board finds that he is not entitled to the presumption of soundness at service entrance. See Paulson v. Brown, 7 Vet. App. 466, 468 (1995). The Board notes that the September 1965 examiner's notation is consistent with the Veteran's own report in his September 1965 pre-induction medical history report that he had previously had, or presently had, a trick or locked knee and bone, joint or other deformity, and that he had previously treated himself for a knee injury. The Board also finds that the examiner's notation is consistent with the physician's summary and elaboration of pertinent data, in which the examiner wrote that the Veteran had had a trick right knee manifested by pain over tibial tubercle in past. The Board's finding is further supported by the opinions of the January 2003 and September 2009 examiners that the Veteran's right knee disorder preexisted his service. Both examiners provided rationales for their opinions, based on a review of the claims file, including the Veteran's reported history and contentions. Since the Board has determined that the Veteran's right knee disorder preexisted service, the next question is whether it was aggravated by his service. As noted above, the presumption of aggravation provides that a preexisting injury or disease will be considered aggravated by active service where there is an increase in the disability during such service, unless there is a specific finding that the increase in the disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Crowe v. Brown, 7 Vet. App. 238 (1994). A temporary worsening of symptoms of a disability subject to exacerbation is not indicative of an increase in the severity of the underlying disability. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Here, based on a review of the evidence, the Board finds that the Veteran's preexisting right knee disorder was not aggravated by his service. At the time of the Veteran's entrance to service, his right knee disorder was asymptomatic, as noted by the January 2003 examiner. The Board acknowledges that the Veteran's service treatment records show several instances of medical treatment for right knee pain and swelling following an incident in which he bumped his right knee against a post. However, this appears to have been an acute and transitory injury to the knee, which healed with rest, the use of an Ace bandage and cast, and an appropriate medical profile. Indeed, the Board observes that at the time of the Veteran's separation examination in July 1967, the examiner found that the Veteran's lower extremities were normal, and he did not note the presence of any right knee abnormality. Furthermore, the Veteran himself has testified that his knee was not really bothering him at the time of service discharge, and that he did not seek any medical treatment for his right knee after service. As such, the Board finds that there was no increase in severity between induction and discharge such that the presumption of aggravation would apply. The Board's finding is further supported by the January 2003 and September 2009 VA medical opinions. The January 2003 examiner concluded that there was no evidence that the Veteran's chronic right knee tibial tubercle bursitis with ossicle had worsened in service, and that, in any case, any worsening that had occurred was due to the natural progress of the preexisting right knee disorder. The September 2009 examiner opined that there was no evidence of the worsening of the preexisting condition in service, with a rationale that the worsening of the condition was due to natural progress of the degeneration of the pre-existing Osgood-Schlatter disease. Both examiners made their opinions based on a review of the claims file and provided rationales for their opinions. The Board further observes that even if the pain and swelling of the Veteran's right knee in 1966 was not viewed as solely the result an acute in-service injury unrelated to his right tubercle abnormality, but instead were viewed as a manifestation of his preexisting right tubercle abnormality following strenuous physical activity, a temporary worsening of symptoms of a disability subject to exacerbation is not indicative of an increase in the severity of the underlying disability, as noted above. This is consistent with the comments by an examiner in the physician's summary at the time of the Veteran's July 1967 report of medical history at discharge, at which time the examiner stated that the Veteran had a trick knee associated with football that only bothered the patient during athletics. Furthermore, both examiners opined that the Veteran's current right knee disorder was not related to his military service on a direct incurrence basis. The opinions were made based on a review of the claims file, and included rationales for the opinions. The Board acknowledges Dr. A.L.'s June 2007 letter shows that he opined that the Veteran's right knee injury "impair[ed]" from ambulation and standing, and that it was service-connected. However, the Board does not find this opinion as probative as that of the January 2003 and September 2009 examiners. Dr. A.L. did not provide any rationale for his opinion, whereas the other examiners provided thorough rationales that took into account the Veteran's contentions and his medical history. The Board finds that Dr. A.L.'s opinion is outweighed by the well-reasoned opinions provided by the January 2003 and September 2009 examiners. In reaching this decision, the Board has considered the Veteran's contention during his July 2002 hearing that service connection is warranted because his knee disorder was aggravated by the running and exercising he was forced to perform as a requirement for military training in Germany, to particularly include the stress of an obstacle course where he banged his knee on a post. The Veteran, however, as a layperson, is not competent to offer a medical opinion as to the aggravation of any preexisting knee disorder during his period of active duty service. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Therefore, the Board concludes that there is no basis in the record upon which service connection for a right knee disorder may be granted. COPD; asbestosis The Veteran contends that he was exposed to asbestos in service by living and working in military buildings. He also contends that he was exposed to gas while training to use gas masks. The Veteran further contends that he was a motor pool clerk and that exposed him to asbestos. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. His personnel records show that he was a clerk/typist in the Army. His STRs show no complaints related to his lungs. His discharge examination in July 1967 showed normal lungs and chest. The Board notes that the Veteran was awarded a nonservice- connected pension in April 1999 due to his COPD and hypertension. Chest x-rays dated in November 1997 show that the Veteran had interstitial scarring in the mid lower lung fields; no pleural thickening was identified. A record dated in February 1998 reveals that the Veteran was diagnosed with COPD. A VA general medical examination in December 1998 shows that the Veteran was a smoker. He reported that he worked in insulation and PBG for 15 years. A VA treatment also dated in December 1998 indicates that the Veteran reported that he quit smoking eight years earlier. He had a smoking history of approximately one pack per day for 20 years. The Veteran underwent a private occupational lung disease evaluation in November 2005. The Veteran reported that he worked for 22 years within industrial settings. His positions, among others, included insulator's helper, insulator apprentice, carpenter's helper, mason's helper, insulator, and general laborer. He was a general laborer, insulator's helper, and forklift operator from 1964-1969; an insulator's helper from 1970-1971; an insulator apprentice from 1972-1976; a carpenter's helper from 1976-1978; a mason's helper in 1979; and an insulator from 1980-1981. The Veteran reported that he tore a lot of asbestos off structures, mixed insulation mortar for use on boilers, and cut foam glass insulation and Johns Manville asbestos. He wore asbestos suits while working in furnaces, plugging holes. The Veteran also insulated pipes in power houses. He did a lot of clean-up of asbestos debris from older areas; he sometimes used a dust mask. The Veteran smoked one package of cigarettes for 32 years, quitting in 1997. The Veteran was diagnosed with severe COPD/emphysema. The evaluation appears to have been done in connection with some kind of litigation; the examiner noted that the Veteran would be receiving a copy of the report from the office of the attorney that sponsored the examination. The evaluation was done prior to the Veteran filing his claim for service connection for COPD. A letter from Dr. A.L. in November 2005 shows that he opined that the Veteran's COPD was related to exposure to cigarettes and environmental exposure to sulfur dioxide. He indicated that the Veteran had pulmonary asbestosis and that he used to work in the plant. He further indicated that the Veteran was exposed to asbestos in the 1970s; no mention was made of asbestos exposure during the Veteran's service in the 1960s. A buddy statement from a man that served with the Veteran dated in May 2007 shows the Veteran was exposed to asbestos while at Fort Polk; it was located in the housing barracks, field houses, libraries, commissaries, bowling alleys, and other facilities. The letter also shows that they were exposed to deadly gases in houses where they were trained to use their gas masks. They were also provided cigarettes. In his June 2007 letter, Dr. A.L. opined that the Veteran's COPD and pulmonary asbestosis was contracted from asbestos exposure during service. He concluded that his illness were service- connected. No rationale for his opinion was provided. Additionally, Dr. A.L. did not mention the November 2005 private lung evaluation, nor did he address his change in opinion from the November 2005 letter that the Veteran was exposed to asbestos during the 1970s. Here, the Veteran has been diagnosed with COPD, which is not a disease associated with exposure to asbestos. However, Dr. A.L. noted that the Veteran had been diagnosed with pulmonary asbestosis. Even if the Veteran does have a disorder associated with asbestos exposure, the Board finds that the evidence does not support the Veteran's contention that he was exposed to asbestos in service or that his current respiratory disorders are related to his military service. As noted above, some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. The evidence does not show that the Veteran engaged in any occupations in service that would have lead to asbestos exposure. Rather, as noted above, the November 2005 lung evaluation shows that post-service, the Veteran was employed in insulation work, among other positions. By his own admission, the Veteran reported that in his post-service occupations, he tore a lot of asbestos structures and did a lot of clean-up of asbestos debris from older areas. As discussed above, the Veteran was awarded a nonservice- connected pension in 1998 due, in part, to his COPD. No contention was made regarding asbestos exposure in service at the time of the Veteran's filing for the pension. Not until the Veteran filed this claim in 2007 did he begin to contend that he was exposed to asbestos in service. The Veteran did not contend any asbestos exposure in service during the November 2005 lung evaluation. Moreover, the November 2007 letter from Dr. A.L. indicates that the Veteran reported that his asbestos exposure occurred in the 1970s, after the Veteran's discharge from service. No mention was made at that time of any asbestos exposure in service. The Board acknowledges the Veteran's contentions and the May 2007 buddy statement that assert asbestos exposure by living and working in military buildings. The Board also acknowledges the Veteran's contention of asbestos exposure from brake dust by being a motor pool clerk. As noted above, an industry associated with asbestos exposure is the manufacture and servicing of friction products such as clutch facings and brake linings. However, although the Veteran's personnel records show that he was a clerk, there is no actual record that he was a motor pool clerk or even if he was, that he was involved in the servicing of clutch facings or brake linings. Further, the record contains no competent and credible medical evidence associating the Veteran's respiratory disorders to his living conditions on base, or to gas mask training. Neither the Veteran nor his fellow soldier are competent to provide such a nexus, and as noted below, Dr. A.L.'s opinion is given little probative weight in that regard. As to the Veteran's contentions that his respiratory disorders are due to smoking in service, the Board notes that Congress has prohibited the grant of service connection for disability on the basis that such disability resulted from disease attributable to the use of tobacco products during a veteran's active service for claims filed after June 9, 1998. 38 U.S.C.A. § 1103 (West 2002). In sum, the evidence weighs against a finding that the Veteran was exposed to asbestos in service; rather, the evidence shows that the Veteran had post-service asbestos exposure through his work in insulation and other industrial occupations. The Board acknowledges Dr. A.L.'s opinion that the Veteran's COPD was contracted by asbestos exposure in service and that it is service-connected. However, the Board does not provide find the opinion persuasive as no rationale was provided. Additionally, it contradicts Dr. A.L.'s November 2005 letter that shows that asbestos exposure occurred in the 1970s, after the Veteran's period of service. Moreover, Dr. A.L. did not take into account the post-service asbestos exposure reported by the Veteran in November 2005, prior to his filing the instant claim. The Board acknowledges the Veteran's belief that he has COPD and asbestosis related to his military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to etiology of a disability. Espiritu, 2 Vet. App. 492; 38 C.F.R. § 3.159(a) (1) (2009). Consequently, the Veteran's own assertions as to diagnosis and etiology of a disability have no probative value. Pulmonary hypertension and vascular hypertension The Veteran contends that he has pulmonary and vascular hypertension related to his military service. His STRs are silent for any treatment for, or diagnosis of, any hypertension. The Veteran has not contended how he developed pulmonary and vascular hypertension as a result of military service. A VA examination dated in December 1998 shows that the Veteran was diagnosed with pulmonary vascular hypertension. The Veteran's nonservice-connected pension is also based, in part, on his hypertension. None of Veteran's post-service medical records contain any opinion as to the etiology of his pulmonary hypertension or vascular hypertension. Here, although the evidence shows that the Veteran has been diagnosed with pulmonary and vascular hypertension, there is no evidence to suggest that it is related to his military service. The Veteran's STRs show no event, injury, or disease that could have caused his hypertension. Moreover, no medical professional has provided any opinion that his pulmonary and vascular hypertension is related to his military service. The Board also finds it probative that the Veteran filed for a nonservice- connected pension in 1999 based, in part, on his hypertension. Not until nearly a decade later did the Veteran begin to contend that his pulmonary hypertension and vascular hypertension were related to his military service. Additionally, the first diagnosis of hypertension was not until 1998, more than 30 years after his discharge from service. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any objective evidence of hypertension for more than 30 years between the period of active service and his claim for service connection is itself evidence which tends to show that this disability did not have its onset in service or for many years thereafter. Thus, the lack of any objective evidence of hypertension for more than 30 years between the period of active service and his claim for service connection is itself evidence which tends to show that this disability did not have its onset in service or for many years thereafter. The Board also finds that a presumption of service connection is not warranted, as hypertension was not shown to be to a compensable degree within one year of discharge from service. See 38 C.F.R. §§ 3.307, 3.309. In sum, the evidence does not show that the Veteran's pulmonary hypertension or vascular hypertension are related to his military service. The Board acknowledges the Veteran's belief that he has pulmonary hypertension and vascular hypertension related to his military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to etiology of a disability. Espiritu, 2 Vet. App. 492; 38 C.F.R. § 3.159(a) (1). Consequently, the Veteran's own assertions as to diagnosis and etiology of a disability have no probative value. Sinusitis The Veteran contends that he has sinusitis related to his military service. His STRs are silent for any treatment for, or diagnosis of, sinusitis. His discharge examination in July 1967 showed normal sinuses. Of record are VA treatment records dated from 1998 through 2009 that show treatment for sinus problems. None of the medical records indicates that any sinus problems experienced by the Veteran are related to his military service. Here, although the records show treatment for sinus problems, the Veteran's STRs show no in-service event, injury, or disease that could have caused sinusitis. Moreover, no medical professional has provided any opinion that the Veteran has sinusitis related to his military service. Additionally there is no indication of treatment for sinus problems prior to 1998. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense, 1 Vet. App. at 356; see also Maxson, 230 F.3d at 1333. Thus, the lack of any objective evidence of sinus complaints, symptoms, or findings for more than 30 years between the period of active service and his claim for service connection is itself evidence which tends to show that this disability did not have its onset in service or for many years thereafter. In sum, there is no medical evidence of record to indicate that the Veteran has sinusitis related to his military service. The Board acknowledges the Veteran's belief that he has sinusitis related to his military service. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to etiology of a disability. Espiritu, 2 Vet. App. 492; 38 C.F.R. § 3.159(a) (1). Consequently, the Veteran's own assertions as to diagnosis and etiology of a disability have no probative value. Benefit-of-the-Doubt As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply, and the Veteran's claims of entitlement to service connection are denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2009). ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for chronic obstructive pulmonary disease; asbestosis is denied. Entitlement to service connection for pulmonary hypertension is denied. Entitlement to service connection for vascular hypertension is denied. Entitlement to service connection for sinusitis is denied. REMAND Regrettably, a remand is necessary for the issues of service connection for bilateral hearing loss and tinnitus. The Veteran contends that he had military noise exposure as the result of training. His personnel records show that he had basic combat training in December 1965. The Veteran's entrance examination in January 1965 revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -10 (0) -10 (-5) LEFT -5 (10) -5 (5) -5 (5) -5 (0) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) The Veteran's discharge examination in July 1967 revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 5 (10) 5 (15) 5 (10) LEFT -5 (10) -5 (5) 0 (10) 5 (15) 5 (10) A private audiological evaluation completed in May 2005 along with a February 2006 report about the evaluation has been associated with the claims file. A graph of the Veteran's audiogram has been associated with the clams file, but may not be interpreted by the Board. See Kelly v. Brown, 7 Vet. App. 471, (1995) (holding that neither the Board nor the RO may interpret graphical representations of audiometric data). The Veteran reported that he had been employed for nine years as an insulator, and for 12 to 13 years as a construction laborer at numerous plants. He reported that he used earplugs for hearing protection on an intermittent basis for unspecified duration. His history of exposure to intense noise for prolonged durations from a recreational standpoint appeared to be negative. The Veteran reported that he served two years in the service as a clerk and that hearing protection was not used. The Veteran was diagnosed with hearing sensitivity in his right ear within normal limits in the low frequencies, and through 1000 Hz, with a mild to severe sensorineural hearing loss in the higher frequencies; in his left ear, he had hearing sensitivity within normal limits in the low frequencies, and through 1000 Hz, with a mild to moderate sensorineural hearing loss in the higher frequencies. Speech recognition scores were 92 percent in the right ear and 96 percent in the left ear; it is unclear whether the Maryland CNC test was used. The audiologist opined that several possible factors existed as causes of hearing loss, which were presbycusis, military noise exposure, and occupational noise exposure at 39 employers. A private audiological evaluation dated in February 2006 reveals that the Veteran's history of tinnitus appeared to be within normal limits. A VA audiology consult dated in July 2007 shows that the Veteran reported occasional tinnitus that he first noticed about 15 years earlier. Here, the Veteran has submitted evidence of current hearing loss and tinnitus disabilities, as well as contentions regarding noise exposure in service. The Veteran has not been afforded an examination to determine if his bilateral hearing loss and tinnitus are related to military noise exposure. Therefore, the Board finds that the Veteran should be afforded a VA examination so that an opinion addressing the etiology of his claimed bilateral hearing loss and tinnitus can be obtained. Additionally, a letter from a private attorney to the Veteran dated in December 2006 indicates that there was some litigation about his bilateral hearing loss that was settled. No records from that litigation have been obtained. On remand, the RO/AMC should obtain those records. Finally, a decision on the issue of the Veteran's entitlement to TDIU is deferred pending resolution of the remaining two service connection issues on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and obtain details about the litigation regarding his bilateral hearing loss. With any necessary authorization from the Veteran, the RO/AMC should take the steps necessary to obtain pertinent records pertaining to the bilateral hearing loss litigation, including, but not limited to, medical records, examination reports, and any resolution/settlement reached between the Veteran and the defendants. 2. The RO/AMC should schedule the Veteran for a VA audiological examination to determine whether he has bilateral hearing loss and tinnitus that is related to military service. The examiner is requested to, among other things, obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed bilateral hearing loss and tinnitus is related to his military service. The examiner should review the claims file, including a copy of this remand. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A complete rationale should be given for all opinions and conclusions expressed. All indicated tests should be conducted and those reports should be incorporated into the examination and associated with the claims file. The AOJ should ensure that the examination report complies with this remand and answers the questions presented in the examination requests. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, may result in a denial of his claims. See 38 C.F.R. § 3.655 (2009). 3. After undertaking any other development deemed appropriate, the AOJ should readjudicate the issues in light of all information or evidence received. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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. 2009). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs