Citation Nr: 1102687 Decision Date: 01/21/11 Archive Date: 01/26/11 DOCKET NO. 08-07 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1956 to May 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the above claims. In July 2009, the Board remanded the matter to the AMC for the purposes of obtaining additional evidence and scheduling VA respiratory and audiological examinations. On the issues of service connection for asbestosis and hearing loss, there has been substantial compliance with the Board's Remand order with regard to the AMC's attempt to obtain the Veteran's records and the requested development has been completed with regard to the requested examinations. Therefore, no further action is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The matter was returned to the Board in December 2010. The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's asbestosis was not manifested during active service or until many years thereafter, nor is it otherwise causally related to such service. 2. The Veteran's bilateral hearing loss was not manifested during active service or until many years thereafter, nor is it otherwise causally related to such service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for asbestosis have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1131, 1112, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated March 2006 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. In light of the denial of the Veteran's claim for service connection, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess. VA also has a duty to assist a claimant in obtaining evidence to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty includes assisting the Veteran in the procurement of service treatment records, other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the RO has obtained the Veteran's service treatment records, relevant VA treatment records, and relevant private treatment records. The Veteran has not identified any additional records that VA failed to obtain. In the Board's July 2009 Remand order, the AMC was directed to obtain the Veteran's recent VA treatment records and any missing VA audiological treatment records, specifically any such records dated from April 2006 or May 2006. The Veteran's recent VA treatment records were obtained. The AMC submitted two requests for the specific audiological records referenced in the Board's Remand order in October 2009 and February 2010, and a response was received in February 2010. No new audiological records dated from April or May 2006 were located. In October 2009, the AMC sent a letter to the Veteran informing him that VA was attempting to obtain copies of his 2006 audiological records and requesting copies of any such records in his possession. The Veteran responded that he had already submitted all records in his possession. A review of the Veteran's VA treatment records from May 2006 shows that an audiogram was scanned into the Veteran's electronic VA file that month and, at least as of that date, could apparently be accessed through a computerized imaging display system. However, as noted, that particular scanned document was not recovered. It is unclear whether the document can no longer be accessed or if the VA Medical Center (VAMC) in Birmingham, Alabama, neglected to attempt to retrieve the document through the imaging display system, but this issue need not be resolved as VA is not required to obtain the missing report before proceeding with the adjudication of the Veteran's claim. The missing report, a scanned audiogram otherwise discussed in the Veteran's VA treatment records, is only relevant to the issue of whether the Veteran currently suffers from bilateral hearing loss in accordance with 38 C.F.R. § 3.385. As the Board concedes the that the Veteran currently suffers from hearing loss below, this record is not relevant to the Veteran's claim for service connection for hearing loss as the claim has been decided on the issue of etiology, and not diagnosis. Therefore, the missing audiogram that is otherwise discussed, described, and analyzed in the medical treatment records does not have a reasonable possibility of substantiating the Veteran's claim and VA need not obtain it before proceeding with the adjudication of the claim for service connection for hearing loss. See Golz v. Shinseki, 590 F.3d 1317, 1321-23 (2010). Similarly, the Board notes that the March 2010 VA respiratory examination refers to an X-ray taken that same day. This X-ray record is not present in the claims folder. However, as the findings are repeated, interpreted, and analyzed in the VA examination report, the Board need not obtain the X-ray record before proceeding with the adjudication of the Veteran's claim for service connection for asbestosis as it is duplicative of evidence already of record. Golz, 590 F.3d at 1321-23. Lastly, in a September 2009 letter from the RO, the Veteran was asked to complete and return release forms so VA could obtain his complete treatment records from Dr. Segarra, Dr. Conner, and Dr. Ballard, or to obtain and send the information to VA himself. In the same letter, he was also asked to provide any documents pertaining to occupational asbestos exposure. The Veteran responded by resubmitting the private medical evidence already of record and asserted that he had no other information or evidence to give to VA. Accordingly, no additional efforts are warranted in order to obtain these records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Similarly, the Veteran's recent VA treatment records indicate that he receives private treatment from Dr. Cross. However, at no time during the pendency of this appeal did the Veteran indicate that these records were relevant to the issues before the Board, request that VA provide them, or provide VA with sufficient information to identify and retrieve these records. As such, VA has not violated its duty to assist the Veteran in making no attempt to retrieve these records. Loving v. Nicholson, 19 Vet. App. 96, 102-03 (2005). In accordance with the duty to assist, VA respiratory and audiological examinations were conducted in March 2010. The examiners considered the Veteran's medical history and conducted appropriate tests and examinations. The audiological examiner noted that the claims folder was reviewed. While the respiratory examiner did not explicitly indicate that the claims folder was available for review, the Board finds that the specificity of the examination report demonstrates that the information in the claims folder was available to the examiner. Furthermore, the Veteran was thoroughly interviewed. Therefore, as the examinations provided by VA were accurate, descriptive, and based on the complete medical record, including the Veteran's lay assertions, VA has fulfilled any duty to provide a thorough and contemporaneous medical examination. Moreover, as discussed above, the Board is satisfied that the AMC has substantially complied with the Board's July 2009 remand directives with regard to the issues of entitlement to service connection for asbestosis and bilateral hearing loss. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that it directed the AMC to obtain complete copies of 1) any medical and legal documents pertaining to the Veteran's occupational exposure to asbestos and any corresponding litigation; 2) complete treatment records from Dr. Segarra, Dr. Conner, and Dr. Ballard; 3) records of any audiological testing done at the VAMC in Birmingham, Alabama, specifically audiogram tests performed in April 2006 and May 2006; 4) any recent VA treatment records related to hearing loss and/or asbestosis. The Board also directed the AMC to schedule the Veteran for VA audiological and respiratory examinations to obtain diagnoses and etiological opinions. In this regard, the Board notes that all relevant federal records have been obtained, the Veteran asserts that all relevant private treatment records have been submitted, and in March 2010, the Veteran was afforded VA examinations where his bilateral hearing loss and respiratory conditions were evaluated and the requested opinions were provided. The duty to assist has been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would serve any useful purpose. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312 (2007); Forcier v. Nicholson, 19 Vet. App. 414 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran). Therefore, because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection The Veteran contends that his asbestosis and bilateral hearing loss were incurred during service. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306. "[I]n order to establish service connection or service- connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Organic diseases of the nervous system such as hearing loss may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under VA regulations, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Thompson v. Gober, 14 Vet. App. 187, 188 (2000); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Asbestosis The Veteran contends that he was exposed to asbestos while serving in the Navy on the U.S.S. Thomaston, and, as a result, currently suffers from asbestosis. VA has issued a circular on asbestos-related diseases, DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular), which provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, (1) that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; (2) that VA is to develop any evidence of asbestos exposure before, during and after service; and (3) that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of the pleura and peritoneum; and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure. Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. As noted above, high exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21- 1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. Upon review of the evidence, the Board finds that service connection is not warranted for asbestosis because the evidence does not show the existence of a current diagnosis of asbestosis. The Veteran filed his claim for service connection for asbestosis in February 2006. To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). The record contains evidence suggesting a diagnosis of asbestosis dated in January 1994 from Jay T. Segarra, M.D. and in July 1999 from James W. Ballard, M.D. Pulmonary function tests were also conducted in September 2003 showing a diagnosis of "asbestos exposure." However, the current evidence of record does not indicate the existence of any continuing condition or residuals from this condition. Rather, VA outpatient treatment records dated from 2005 to 2010 show no evidence of asbestosis. In March 2010, the VA examiner acknowledged the chest x-rays from the 1990s which showed evidence of pleural plaques and were the basis for the prior diagnosis of asbestosis. However, he noted that subsequent VA x-rays did not show any evidence of pleural plaques nor of pulmonary fibrosis. More importantly, a chest x-ray conducted at the time of the March 2010 VA examination showed lungs that were clear without evidence of pneumothorax, pneumonia, or pleural effusion. The cardiomediastinal silhouette was enlarged, but stable since the previous study with no evidence of acute abnormality or evidence of asbestosis. The VA examiner also that the Veteran was not currently being treated with any respiratory medications and does not suffer from asthma attacks. His electronic problem list does indicate an ongoing respiratory problem, and he has limitations on his activity due to dyspnea. The Veteran reported an occasionally productive cough and dyspnea at relatively low levels of exertion. He did not report hemotypsis or anorexia. Upon examination, his lungs were clear to auscultation and percussion with diminished air movement at the bases, as it often seen with obesity. Lung fields were clear above with no rhonchi, wheezing, or rales. Based on the radiographic evidence, review of the records, and the examination, the VA examiner provided a diagnosis of dyspnea on exertion with no evidence of asbestosis. The examiner concluded that there was no evidence of asbestosis present. This finding is consistent with the Veteran's VA treatment records, which also consistently show no reports of respiratory problems. See, e.g. January 2006 VA treatment records (showing regular respiration with clear breathing; no shortness of breath, coughing, or wheezing; and lungs clear to auscultation and percussion); January 2008 VA treatment records (reporting that patient was breathing at ease); March 2008 VA treatment records (noting that no cough or shortness of breath was reported); April 2008 VA treatment records (reporting that the Veteran did not cough or wheeze and denied shortness of breath); May 2009 VA treatment records (showing clear lungs bilaterally with no rales, rhonchi, or wheezes); March 2010 VA treatment records (showing that the Veteran denied shortness of breath or coughing). As such, the evidence dated during the appellate period reflects no findings or diagnoses of asbestosis or residuals of asbestosis. Rather, the evidence includes the VA examiner's competent and well-supported determination that the Veteran does not have a present disability of asbestosis. The Board notes that the evidence dated during the appellate period does contain the Veteran's assertion that he currently suffers from asbestosis. Additionally, the Board acknowledges that lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Here, the Board finds that asbestosis is not the type of medical condition that can be identified by its unique and readily identifiable features. Rather, VBA Manual M21-1, Part VI, para. 7.21(c) requires radiographic evidence of parenchymal lung disease in order to substantiate a diagnosis based on asbestosis exposure. The Veteran is competent to testify to his respiratory symptoms, but here these symptoms are not supported by a later diagnosis within the appellate period, and, furthermore, the Veteran's competent testimony regarding his symptoms is outweighed by the findings of the VA examiner, who acknowledged the Veteran's symptoms but determined that the radiographic evidence did not support a finding of asbestosis. In the alternative, even if the evidence did support the existence of a present respiratory disorder, there no evidence linking any current respiratory disorder to the Veteran's military service. While the Veteran's service treatment records show that he complained of respiratory problems in October 1956 and was diagnosed with what was "most likely" pleurodynia, his chest X-ray was negative. Additionally, no respiratory problems were noted at separation from active service. The March 2010 VA examiner noted the diagnosis of pleurodynia with normal chest x- ray in 1956 and stated that the Veteran had no new problems related to that. The examiner concluded that the Veteran did not have any current respiratory problems that had their onset during his active military service. The Board also points out that the private examiners that diagnosed asbestosis in the 1990s did so based upon the Veteran's reported history of asbestos exposure during his civilian employment as a maintenance man in a melting department and working on pipelines for two different companies, and not based upon his active military service. In sum, there is no competent medical evidence of record showing the presence of a current respiratory disorder. The March 2010 VA examiner determined that the Veteran did not have asbestosis or any current respiratory problems that had their onset during his active military service. As noted above, the Veteran is not competent to determine that he has asbestosis. Evidence dated in the 1990s, prior to the appellate period, related a respiratory disorder (which is now resolved) to asbestos exposure during the Veteran's civilian employment. There is no competent medical evidence of record relating any current respiratory disorder to the Veteran's active service. Therefore, the preponderance of the evidence is against the Veteran's claim and the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. The claim for service connection for asbestosis must be denied. B. Hearing Loss The Veteran contends that he currently suffers from hearing loss as a result of regular exposure to gunfire noise from a 50 caliber machine gun while serving as a gunner's mate while in the Navy. The evidence demonstrates a current disability of bilateral hearing loss. In this regard, at the Veteran's VA audiology examination in March 2010, the VA audiologist diagnosed mild to profound high frequency sensorineural hearing loss in the left ear, and mild to severe high frequency sensorineural hearing loss in the right ear. Auditory thresholds were at or above 40 for four of the five relevant frequencies, for both ears, and his speech threshold scores were reported at 66 for the right ear, and 68 for the left ear. Accordingly, the Veteran has a current hearing loss disability as defined by 38 C.F.R. § 3.385. At his April 2006 audiological consultation, the Veteran stated that he first noticed hearing problems during his active military service as a gunner's mate aboard the U.S.S. Thomaston. The Veteran's service personnel records, including his DD-214, show service aboard the U.S.S. Thomaston, but no specialty is noted. However, as the available evidence is consistent with the Veteran's testimony, the Board finds that his statements regarding the character of service and the noise exposure experienced are credible. Therefore, noise exposure in service is conceded. However, there are no complains of hearing loss noted in the Veteran's service treatment records or at separation from service, and no audiological data was reported at the Veteran's separation examination. At the March 2010 VA examination, the Veteran reported decreased hearing since 2006, but related his hearing loss to military noise exposure. In addition to noise exposure in service, he also reported 40 years of occupational noise exposure, with hearing protection used only part of the time. He also reported recreational noise exposure from hunting, boating, and lawn care, without hearing protection. The VA examiner determined that the Veteran's hearing loss was less likely as not caused by or a result of his military noise exposure because the Veteran did not seek treatment for hearing loss before 2006 and had a significant history of civilian occupational and recreational noise exposure for almost 40 years without hearing protection. The March 2010 VA examiner is competent to render an opinion on the etiology of the Veteran's hearing loss as a licensed audiologist, and the opinion provided was based on a review of the claims folder and a complete history of the Veteran's service and hearing loss. Additionally, the examiner provided a thorough rationale for the opinion given. Accordingly, the opinion of the examiner is highly probative and outweighs the other evidence of record, including the Veteran's lay statements that he first experienced audiological symptoms in service. See Thompson, 14 Vet. App. at 188; Owens, 7 Vet. App. at 433. Furthermore, the evidence of record does not support a finding that hearing loss manifested to a compensable degree within a year of service, or that symptoms of hearing loss have been continuous since service. The Veteran has claimed that his noise exposure in service caused hearing loss during service and ultimately led to his current hearing loss, but he did not indicate whether he continued to experience symptoms of hearing loss after service prior to seeking treatment in 2006 and the history provided at his VA examination tends to show that he did not experience continuous symptoms. As such, the Veteran's claims cannot be substantiated under the provisions of 38 C.F.R. § 3.303(b). Therefore, the preponderance of the evidence is against finding that the Veteran's hearing loss was incurred in service under all applicable theories of entitlement such that the benefit-of-the- doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for hearing loss must be denied. ORDER Service connection for asbestosis is denied. Service connection for bilateral hearing loss is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, further development is warranted as the actions requested in the Board's June 2010 remand order have not been fully performed. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). In the Board's July 2009 Remand order, the Board directed the AMC to obtain a medical opinion as to whether it is as least as likely as not that any diagnosed tinnitus had its onset during active service or is related to any in-service disease or injury, including noise exposure as a gunner's mate in the Navy. Furthermore, the Board instructed the examiner to acknowledge the lay statements of record regarding the Veteran's reports of continuous symptoms since service. Specifically, the Veteran reported intermittent and occasional ringing and roaring in both ears at an April 2006 VA audiological consultation. Furthermore, the Veteran claimed tinnitus in his February 2006 claim and March 2008 appeal, and he is competent to testify to symptoms of tinnitus. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The Veteran was provided with a VA examination in March 2010, but the examiner did not acknowledge the Veteran's lay statements of record and instead noted only that the Veteran did not report the presence of tinnitus during the case history interview. As such, no etiological opinion was provided. Therefore, the claim must be remanded so the medical opinion sought can be obtained. Stegall, 11 Vet. App. at 271 (finding that where a VA medical examination did not comply with the directions found in a prior remand order, the matter must be remanded for additional development); see also 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (holding that a medical opinion is inadequate where the examiner does not provide the requested opinion). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Based on the review of this Remand and the claims folder, to include consideration of the Veteran's lay statements of record, the examiner should provide an opinion as to whether it is as least as likely as not (50% or greater probability) that any currently diagnosed tinnitus had its clinical onset during active service or is related to any in- service disease, event, or injury, including noise exposure as a gunner's mate in the Navy. If the examiner determines that the Veteran does not suffer from tinnitus, the examiner should reconcile this finding with the April 2006 VA audiological consultation report, wherein the Veteran reported intermittent and occasional ringing and roaring in both ears. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Review the VA medical opinion obtained above to ensure that the remand directives have been accomplished, and if all questions posed are not answered, return the case to the examiner for completion of the inquiry. 3. Finally, readjudicate the claim on appeal. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs