Citation Nr: 1132769 Decision Date: 09/06/11 Archive Date: 09/12/11 DOCKET NO. 06-31 804A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for asbestosis. 3. Entitlement to service connection for silicosis. 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected deviated nasal septum. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for residuals of a head trauma. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from October 1960 to April 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in May 2005 and May 2006 issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. This case was previously remanded by the Board in November 2009 and November 2010 in order to satisfy the Veteran's request for a Board hearing. In June 2011, the Veteran presented hearing testimony before the undersigned Veterans Law Judge by videoconference. The transcript of the hearing is associated with the claims file. Because the Veteran filed a claim for a "back condition" and the evidentiary record shows that he has disc bulges and mild facet arthropathy of the lumbar spine and chronic lumbosacral strain in addition to spondylolysis of his lumbar spine, we have recharacterized the issue as entitlement to a back disorder, as stated on the first page of this decision. The issues of entitlement to service connection for: 1) a back disorder; 2) silicosis; 3) sleep apnea; 4) and residuals of head trauma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record preponderates against a finding that the Veteran currently suffers from asbestosis. 2. The evidence is in approximate balance as to whether the Veteran's tinnitus is causally or etiologically related to his active military service. CONCLUSIONS OF LAW 1. The Veteran's claimed asbestosis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010). 2. Giving the benefit of the doubt to the Veteran, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As will be explained below, neither the Veteran nor his representative has alleged prejudicial error, and none has otherwise been shown by the record. In this case, the RO advised the Veteran of the evidence needed to substantiate his claims in February 2004 and September 2004 notice letters. The RO further explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his claims. In particular regard to Dingess notice requirements, the Board notes that the Veteran was not provided with notice regarding the degree of disability or effective date prior to the initial denial of his claims. However, he was provided with notice of how VA determines the effective date once service connection has been established in the May 2006 letter, which notified him of the denial of residuals of head trauma and the August 2006 letter, which notified him of his award of service-connected compensation benefits for bilateral hearing loss. Although the notice letters did not specifically pertain to the claims adjudicated herein, it is reasonable to conclude that the Veteran and his representative were generally aware of the evidence needed to establish a disability rating and effective date once service-connection has been established as a result of receiving such notice. Further, because service connection for tinnitus is being granted for reasons explained below, the RO will remedy any notice defect when effectuating the award of benefits. Regarding asbestosis, because service connection is not established for reasons explained below, no disability rating or effective date will be assigned. Consequently, any lack of notice regarding such notice elements is rendered moot. The Board notes that the February 2004 and September 2004 notice letters were sent before the initial denial of the claims, and adequately satisfied VCAA notice requirements with respect to the Veteran's claims. The record further reflects that the Veteran has been provided with a copy of the above rating decision, and the August 2006 SOC, which cumulatively included a discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decisions, and a summary of the evidence considered to reach the decisions. Moreover, neither the Veteran nor his representative has alleged any prejudice with respect to the notice received for the claims during the course of this appeal. The Veteran has also been provided with ample opportunity to submit evidence and argument and to participate effectively in the processing of his claims during the course of this appeal. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, supra. Regarding VA's statutory duty to assist, the Veteran was afforded with medical examinations in connection with his claims in March 2006. For reasons discussed below, the Board finds that the examination reports are adequate for the purposes of this adjudication. The Board additionally notes that the claims file contains all available evidence pertinent to these claims. Either VA has requested records identified throughout the claims process as pertinent to the claims or the Veteran has submitted them himself. The Veteran was given appropriate notice of his responsibility to provide VA with any treatment records pertinent to his claimed disorders and the record contains sufficient evidence to make a decision on the claims. The Veteran's service treatment records (STRs) have been associated with the claims folder and reviewed. The Veteran has not made VA aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. The Board further finds that there has been substantial compliance with its prior remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Therefore, the Board will proceed with appellate review. II. Pertinent Law, Facts, and Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999); Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, where a Veteran served continuously for ninety (90) days or more during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system (e.g., tinnitus), to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A. Asbestosis The Veteran contends that he was exposed to asbestos in service and that asbestos fibers caused him to develop asbestosis. He has stated that he was exposed to dust from asbestos insulation when the crew aboard a naval ship on which he was stationed tore the insulation and reapplied it to the bulkheads and to the steam pipes while he was on board. He states that he himself never worked with asbestos but was around when other people were working with it. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular were later included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (M21-1). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service, and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). In the present case, available service personnel records show that the Veteran was on various navel vessels during his period of service while performing his duties as a flamethrower operator. It is not certain whether the Veteran is competent to identify the substance he reportedly saw on the naval vessels during his service as asbestos. Even assuming that he is competent to identify asbestos, however, the evidentiary record does not show that he currently suffers from asbestosis. The Board notes that the Veteran underwent a medical examination in connection with his claim in March 2006. As part of the examination, the Veteran underwent physical examination, a chest x-ray, and a pulmonary function study. On physical examination, the Veteran's lungs were clear to auscultation and percussion with no rales, rhonchi, or wheezes. The heart also had a normal sinus rhythm with no murmurs, friction rub, or extrasystoles. The Veteran also had a negative chest x-ray and normal pulmonary function tests (PFT). The examiner concluded that there was no evidence of asbestosis. The examiner's conclusion is supported by the objective findings at the time of the examination and he confirmed review of the Veteran's claims folder. Because the examiner provided a rationale in support of his conclusion that is consistent with the objective findings reflected in the examination report and confirmed review of the claims folder, his opinion is afforded great probative value. Additionally, it is notable that the examiner's conclusion is consistent with an earlier finding by another physician in January 1999. Indeed, an assistant professor of medicine at a medical college similarly concluded, in a letter dated in January 1999, that there was no evidence for asbestosis and asbestos-related pleural changes were not seen. The physician based her conclusion on the medical, social, and family history as provided by the Veteran, physical examination of the Veteran, physiological data, and radiographic interpretation. The Board observes that the letter head shows that the physician was a medical director of the adult cystic fibrosis program and respiratory care service and an assistant professor of the department of internal medicine and pulmonary and critical care section of the medical center at that time. Thus, she clearly had specialized medical expertise in the area of pulmonary disorders and was competent to render such a conclusion. The Board notes that there is an earlier medical record dated in April 1995 included in the record wherein another physician alternatively noted that the Veteran had asbestosis. She stated that asbestosis was evidenced by the Veteran's history of exposure to asbestos fiber associated with his symptoms of cough occurring in the evening, as well as a chest x-ray showing interstitial changes, pleural thickening on the left lung laterally without history of rib injury, and pulmonary function studies showing restrictive lung disease pattern. While the VA examiner did not specifically discuss this record in rendering his conclusion, he did confirm review of the claims folder and made note of the Veteran's report of having been diagnosed with asbestosis in approximately 1996. He also performed his own diagnostic studies and physical examination of the Veteran in his assessment of the Veteran's claimed disorder. Thus, the Board concludes that he had adequate data on which to base his opinion that there was no evidence of asbestosis. The absence of specific discussion by the examiner of the April 1995 medical record does not render his opinion inadequate for these reasons. Further, we note that the April 1995 medical record is dated many years before the Veteran filed his claim. Thus, while relevant to the claim of service connection because it pertains to the history of the claimed disorder, it does not sufficiently establish that the Veteran currently has asbestosis. McClain v. Nicholson, 21 Vet. App. 319 (2007). Moreover, the Board notes that two different medical examiners since April 1995 have examined the Veteran and interpreted more recent diagnostic studies and found no evidence of asbestosis. This more recent evidence, particularly the March 2006 VA medical examination report, is afforded more probative weight in determining whether the Veteran currently has asbestosis. Although the Veteran has questioned the VA medical examiner's expertise in providing a medical opinion regarding a respiratory disorder because he is a family physician and not a pulmonologist, the Board finds that the Veteran does not present with a disability picture so complex so as to require the specialized medical expertise of a pulmonologist. Further, the Board again notes that the VA medical examiner's conclusion is consistent with the earlier conclusion by a physician who specializes in respiratory disorders. See letter dated January 28, 1999. Thus, for the foregoing reasons, the Board concludes that, although the Veteran may have been exposed to asbestos in service, he is not entitled to service-connected compensation benefits for asbestosis because he does not currently suffer from the disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is of no advantage. Therefore, because the preponderance of the evidence is against his claim, service connection for asbestosis is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, because the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Tinnitus On a VA Form 21-4138 (Statement in Support of Claim) dated in July 2004, the Veteran asserted that he had tinnitus as a result of exposure to artillery while serving in the Marines. He explained that, during service, an 8-inch self-propelled artillery piece fired rounds near him, and he did not have ear protection. The Veteran underwent an audiological examination in March 2006 in connection with his claim. The examining audiologist diagnosed periodic bilateral tinnitus, based on the Veteran's report of periodic ringing in his ears. However, the examiner concluded that it was unlikely that the Veteran's tinnitus was related to active service because it was infrequent, occurring only one time per week. It is notable that the examiner had previously written earlier in her report that, while the Veteran's current level and type of hearing loss supported his claim of tinnitus, it was infrequent occurring only one time per week. In August 2006, the RO denied service connection for tinnitus based on the absence of evidence of tinnitus in service. The Veteran filed his substantive appeal in October 2006. On his VA Form 9, the Veteran wrote that his tinnitus had its original manifestation during service. He also requested a Board hearing at that time. At the June 2011 Board hearing, the Veteran again reported that he had been near eight-inch guns that were fired and, as a result, suffered acoustic trauma in service. He also reported that tinnitus has bothered him since service. See hearing transcript, page 12. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). In the present case, the Veteran's STRs are devoid of any evidence of tinnitus based on review of the RO decisions issued in connection with the Veteran's claim/appeal. However, the service records show that the Veteran served as a flamethrower operator, among other specialties, during his period of service. Also, the Veteran has competently reported that he was exposed to the loud noise of weaponry while performing his duties in service. Exposure to loud noises is found to be consistent with the circumstances and conditions of the Veteran's service, and the Board finds the Veteran's account of noise exposure during service credible. In addition, the Board notes that the Veteran has stated that he has had tinnitus since service as a result of noise exposure. The Veteran is competent to report the onset of his tinnitus. See Jandreau, supra. Although it appears that the Veteran may have told the March 2006 VA examining audiologist that he was uncertain when he first noticed tinnitus, the Board finds that the Veteran's statement relating the onset of his tinnitus to service credible. In this regard, the Board particularly notes that the explanation provided by the Veteran at the Board hearing relating the onset of his tinnitus to his time in service is satisfactory. See hearing transcript, page 12. The Veteran has also previously written on his October 2006 VA Form 9 that his tinnitus initially manifested during military service. Furthermore, the Board notes that tinnitus is subjective, and the kind of condition as to which lay testimony is competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno, supra (noting that competent lay evidence requires facts perceived through the use of the five senses). Moreover, and significantly, the Veteran was service connected for bilateral hearing loss in an August 2006 rating decision. At the March 2006 VA audiological examination, he was diagnosed with bilateral sensorineural hearing loss, which was linked to his noise exposure in the Marine Corps. The fact that the Veteran has been diagnosed as having bilateral sensorineural hearing loss and granted compensation for a service-related hearing loss adds to the credibility of his contention that his tinnitus is related to service because "an associated hearing loss is usually present" with tinnitus. See MERCK MANUAL, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. With regard to the latter, the evidence of record reflects that the Veteran's hearing loss is at least as likely as not noise-induced, i.e., a result of his exposure to acoustic trauma during service. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." MERCK MANUAL, Sec. 7, Ch. 85, Inner Ear. This is supported by the audiological examiner's statement that "[t]he [V]eteran's current level and type of hearing loss support his claim of tinnitus", which certainly suggests a relationship between the Veteran's service-connected hearing loss and tinnitus in this case. Thus, the evidence of record in support of the claim consists of the above-noted provisions from the MERCK MANUAL, the Veteran's history of service-connected sensorineural hearing loss, and the Veteran's own statements relating the onset of tinnitus to his period of service. The March 2006 VA examination report established that the Veteran's bilateral hearing loss is etiologically linked to his active service and shows that he has tinnitus. The cited provisions from the MERCK MANUAL confirm that tinnitus usually accompanies noise-induced hearing loss, which in this case has been diagnosed. Finally, the Board has determined that the Veteran's assertion that he has experienced tinnitus since service is competent and credible evidence upon which the Board may afford significant probative value in making its decision. The evidence unfavorable to the claim for service connection consists of the absence of any medical evidence of tinnitus until many years after service and the negative medical opinion by the audiologist concluding that the Veteran's tinnitus was not related to service. Also, there is evidence of post-service occupational noise exposure. The examiner alluded to the fact that the Veteran's career as a machinist also involved significant noise exposure. Further, as addressed above, there has been some ambiguity as to when tinnitus had its onset although, as noted above, the Veteran's account of tinnitus since service is deemed credible. Thus, in consideration of the above, the Board concludes that the evidence for and against the claim for service connection for tinnitus is at least in approximate balance. In other words, the Board finds, based on the evidentiary record, that the Veteran's tinnitus is as likely the result of his noise exposure in service or associated with his service-connected noise-induced bilateral hearing loss as it is the result of some other factor or factors. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran in this case, and grant service connection for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Entitlement to service connection for asbestosis is denied. Entitlement to service connection for tinnitus is granted. REMAND Although the Board sincerely regrets the delay, a remand for further evidentiary development is required before proceeding to adjudicate the merits of the Veteran's remaining claims. Regarding the Veteran's claimed back disorder, the Board finds upon review that the medical opinion provided by the May 2005 VA spine examiner is inadequate. First, although the examiner concluded that the Veteran's "back pain, spondylosis, chronic lumbosacral strain" was not due to service, he did not adequately discuss the STR entries, to include the April 1965 impression of "chronic strain" or the Veteran's competent lay account of continuity of back symptomatology since service in providing a rationale for his conclusion. Second, he did not address the Veteran's assertion that his chronic back pain was present prior to his involvement in an automobile accident in 1992 and he referenced the fact that he has presented evidence showing that he was receiving back treatment from a chiropractor from 1990 in providing a rationale for his conclusion. For these reasons, a remand for a supplemental medical opinion is necessary. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination). Regarding claimed silicosis, the Board finds upon review that the March 2006 VA examination report is inadequate. Although the examiner noted in his examination report that there was a letter from a physician claiming that there was evidence of silicosis and conducted a thorough evaluation of the Veteran, he did not discuss whether silicosis was present in the diagnostic and clinical tests portion of his report or in any addendum. While, perhaps, we may infer that there was no evidence of silicosis based on the negative chest x-ray, normal PFT, and normal physical examination, we find that a remand for a supplemental medical opinion is appropriate, particularly in light of the fact that a pulmonologist noted that the Veteran had pulmonary silicosis in May 2002, approximately two years before the Veteran filed his claim. For this reason, a remand for a supplemental medical opinion is necessary. See Colvin, supra. Regarding the Veteran's claimed sleep apnea, the Board finds upon review that the March 2006 respiratory examination report is not adequate. The Board notes that the VA examiner concluded that there was no connection between sleep apnea and his service-connected deviated septum because sleep apnea was not due to obstruction of the nasal passage but due to pharyngeal obstruction. However, since the examination, the Veteran has submitted a medical opinion from his private otolaryngologist wherein he notes that the Veteran's mechanical obstruction involving the nasal septum amounts for at least 50% or better for his sleep apnea problem. See April 28, 2009 treatment note. Because there appears to be conflicting evidence of record, the Board finds that a remand for a supplemental medical opinion from an otolaryngologist is warranted. See Colvin, supra. Regarding claimed residuals of head trauma, the Board notes that the RO wrote in the April 2007 SOC that the STRs showed that the Veteran complained of a temporary loss of memory that occurred during a football game in January 1961 with no subsequent complaints shown in service. The Veteran has competently reported that he continues to have difficulty with his memory at the Board hearing. See hearing transcript, page 19. However, he has not been afforded with a medical examination in connection with his claim. Thus, a remand for a medical examination and medical nexus opinion is necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Forward the claims folder to an appropriate examiner to obtain a supplemental medical opinion regarding the claimed back disorder. If another medical examination is needed in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner/reviewer should be accomplished and all findings reported in detail. The examiner/reviewer must confirm that the claims folder was reviewed in the examination report. In addressing the questions below, the examiner/reviewer's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on review of the claims folder, the examiner/reviewer should state whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current back disorder is directly related to the Veteran's military service, to include consideration as to whether it initially manifested or had its onset in service or otherwise whether the symptomatology shown in service is causally or etiologically related to a current back disorder; OR whether such causal or aggravation relationship is unlikely (i.e., a probability of less than 50 percent.) b. The examiner/reviewer should discuss lay and medical evidence contained in the claims file, to include the Veteran's STRs, as well as post-service lay and medical evidence in support of his or her conclusions. The examiner should discuss the STR entries, to include the April 1965 impression of "chronic strain, and the Veteran's competent lay account of continuity of back symptomatology since service in providing a rationale for his or her conclusion. The examiner/reviewer should also address the Veteran's assertion that his chronic back pain was present prior to his involvement in an automobile accident in 1992 in providing a rationale for his or her conclusion. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. Note: It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the examiner/reviewer should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner/reviewer concludes that there is insufficient information to provide an etiologic opinion without resort to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's claimed disorder. 2. Forward the claims folder to an appropriate examiner to obtain a supplemental medical opinion regarding the claimed silicosis. If another medical examination is needed in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner/reviewer should be accomplished and all findings reported in detail. The examiner/reviewer must confirm that the claims folder was reviewed in the examination report. In addressing the questions below, the examiner/reviewer's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on review of the claims folder, the examiner/reviewer should state whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran currently suffers from silicosis and, if so, whether it is at least as likely as not that the disorder is directly related to the Veteran's military service, to include any symptomatology or alleged exposure to sandblasting therein; OR whether such causal or etiologic relationship is unlikely (i.e., a probability of less than 50 percent.) b. The examiner/reviewer should discuss lay and medical evidence contained in the claims file, to include the Veteran's STRs, as well as post-service lay and medical evidence in support of his or her conclusions. The examiner/reviewer should specifically address the May 2002 letter from a pulmonologist stating that the Veteran had pulmonary silicosis at that time in rendering his or her conclusion. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. Note: It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the examiner/reviewer should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner/reviewer concludes that there is insufficient information to provide an etiologic opinion without resort to mere speculation, the examiner/reviewer should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's claimed disorder. 3. Forward the claims folder to an appropriate examiner to obtain a supplemental medical opinion regarding the claimed sleep apnea from an otolaryngologist. If another medical examination is needed in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. In addressing the questions below, the examiner/reviewer's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on review of the claims folder and examination and interview of the Veteran, the examiner/reviewer should provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current sleep apnea was caused or aggravated by his service-connected deviated nasal septum; OR whether such a relationship on either a causation or aggravation basis is unlikely (i.e., a probability of less than 50 percent.) b. The examiner/reviewer should discuss evidence contained in the Veteran's STRs, if appropriate, and post-service lay and medical evidence as well as any medical principles in support of his or her conclusions. The examiner/reviewer should discuss the April 2009 treatment note by the Veteran's treating physician, Dr. J.M. as well as related medical records. In regard to the lay evidence of record, the examiner/reviewer should note the multiple statements and testimony the Veteran submitted on his own behalf, regarding in-service and post-service symptoms and experiences, and the examiner/reviewer should consider the credibility of those statements in light of confirming or contradicting evidence of record, including objective findings. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If the examiner/reviewer concludes that the Veteran's sleep apnea has been aggravated by his deviated nasal septum, the examiner/reviewer should attempt to identify the baseline level of severity of the sleep apnea before the onset of aggravation. e. Note: It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the reviewer/examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner/reviewer concludes that there is insufficient information to provide an etiologic opinion without resort to mere speculation, the examiner/reviewer should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's claimed disorder. 4. Schedule the Veteran for an appropriate examination for his claimed residuals of head trauma. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. In addressing the questions below, the examiner's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on review of the claims folder and examination and interview of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current residuals of a head trauma were caused by, or was initially manifested during, the Veteran's active military service, to include consideration of any symptomatology shown therein or any incident or event therein; OR whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent.) b. The examiner should discuss evidence contained in the Veteran's STRs, to include the "temporary loss of memory" during a football game in 1961, and post-service lay and medical evidence as well as any medical principles in support of his or her conclusions. In regard to the lay evidence of record, the examiner should note the multiple statements and testimony the Veteran submitted on his own behalf, regarding in-service and post-service symptoms and experiences, and the examiner should consider the credibility of those statements in light of confirming or contradicting evidence of record, including objective findings. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. Note: It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the reviewer/examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without resort to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's claimed disorder. 5. Thereafter, readjudicate the Veteran's claims. Should the benefit sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and an appropriate period of time for response. Thereafter, return the case to the Board for further appellate consideration, if in order. The purpose of this REMAND is to obtain additional development and to ensure due process. The Board does not intimate any opinion as to the ultimate disposition of the case at this time. The Veteran 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. 2010). ______________________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs