Citation Nr: 1210438 Decision Date: 03/21/12 Archive Date: 03/30/12 DOCKET NO. 09-32 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for anxiety. 3. Entitlement to service connection for bilateral lower extremity neuropathy. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for respiratory disorder, to include as due to in-service asbestos exposure. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served in active military service from October 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied the Veteran's claims. In a June 2007 letter, the RO in Chicago, Illinois notified the Veteran of that determination and of his appellate rights. [Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the RO in Chicago, Illinois.] The Veteran's claim of entitlement to service connection for diabetes mellitus as due to herbicide exposure was denied in a rating decision dated April 2009. As evidenced by the claims file, a notice of disagreement was not filed and the issue is, therefore, not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). The issues of entitlement to service connection for respiratory disorder, bilateral hearing loss, and tinnitus 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. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran been diagnosed with sleep apnea. 2. At no time during the appeal period has the Veteran been diagnosed with anxiety. 3. At no time during the appeal period has the Veteran been diagnosed with bilateral lower extremity neuropathy. 4. Hypertension was not manifested until many years after the Veteran's active duty and has not been found by competent and credible evidence to be related in any way to such service. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & West Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). 2. Anxiety was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & West Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). 3. Bilateral lower extremity neuropathy was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & West Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). 4. Hypertension was not incurred in, or aggravated by, active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & West Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). 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). The VCAA notice 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. 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). Here, a pre-decisional notice letter in December 2006 complied with VA's duty to notify the Veteran with regard to the service connection claims adjudicated herein. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, 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 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs) and post-service medical records in furtherance of his claims. The Veteran authorized the release of records for Swedish American Hospital. However, that facility indicated that they had no information pertaining to the Veteran for the dates that he had provided. The United States Court of Appeals for Veterans Claims (Court) has held that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The Veteran has been accorded the opportunity to provide such records himself. Therefore, VA has no further duty to him with respect to obtaining these records. As such, VA has no duty to inform or assist that was unmet. In addition, the Board finds that a medical opinion on the matter of the etiology of the claimed sleep apnea, anxiety, bilateral lower extremity neuropathy, and hypertension is 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 rather contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that a 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 also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that the Veteran has current disabilities of sleep apnea, anxiety, and bilateral lower extremity neuropathy. In addition, with regard to his hypertension claim, there is no competent evidence of a diagnosed disability until many years after service or of a relationship between the now diagnosed hypertension and his active duty. 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. Analysis 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). A. Sleep Apnea, Anxiety, And Bilateral Lower Extremity Neuropathy The Veteran contends that he has sleep apnea, anxiety, and bilateral lower extremity neuropathy that are related to his military service. His STRs show no treatment for, or diagnosis of, sleep apnea, anxiety, or bilateral lower extremity neuropathy. In this regard, the Board recognizes that the Veteran complained of back pain in-service and was diagnosed with an intermittent muscle strain. See the STRs dated November 1965, December 1965, and June 1966. However, the Veteran did not complain of lower extremity symptoms at that time. Notably, the December 1967 service separation examination was absent of any complaint or finding of sleep apnea, anxiety, and bilateral lower extremity neuropathy. Post-service medical records also do not contain any complaints of, treatment for, or diagnoses of sleep apnea, anxiety, or bilateral lower extremity neuropathy. Notably, the Veteran was the "unbelted driver" in a head-on collision in January 1997 and was treated for a contusion of his right ribs. Complaints pertaining to sleep problems, anxiety, or lower extremity symptoms were not indicated at that time. In fact, there is no medical evidence of record reflecting a diagnosis of any of these disabilities in the forty-four years since the Veteran's discharge from service. Based on a review of the evidence, the Board finds that service connection for sleep apnea, bilateral lower extremity neuropathy, and anxiety is not warranted. The Board does not dispute that the Veteran may have sleep problems, anxiety, or symptoms in the bilateral lower extremities. However, the post-service medical evidence fails to show a diagnosis of sleep apnea, bilateral lower extremity neuropathy, or anxiety at any time during the current appeal period. Moreover, the Veteran has offered no lay statements (aside from a cursory notation in his October 2006 claim) with respect to these claimed disabilities. The existence of a disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that the Veteran currently has, or has had at some point during the current appeal, the disability for which benefits are being claimed. Here, there is no competent medical evidence reflective of sleep apnea, anxiety, or bilateral lower extremity neuropathy. The Board acknowledges the Veteran's belief that he has sleep apnea, anxiety, and bilateral lower extremity neuropathy 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 regarding the diagnosis of sleep apnea. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a) (1) (2011). Thus, the Veteran's own assertions as to diagnosis of the identified disabilities have no probative value. Consequently, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claims for service connection for sleep apnea, anxiety, and bilateral lower extremity neuropathy. At no time since the Veteran filed his claims in October 2006 has a diagnosis of sleep apnea, anxiety, or bilateral lower extremity neuropathy been made. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Accordingly, the preponderance of the evidence is against these service connection claims. The benefit-of-the-doubt rule does not apply, and the Veteran's claims for service connection for sleep apnea, anxiety, and bilateral lower extremity neuropathy are denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2011). B. Hypertension The Veteran has asserted that he has hypertension that is due to his military service. See the October 2006 claim. The Board notes that the term hypertension refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm. Hg systolic and from 90 mm. Hg diastolic. See Dorland's Illustrated Medical Dictionary 909 (31st ed. 2007). Similarly, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Code 7101, Note 1 (2011). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for hypertension. In the October 1964 enlistment examination, the Veteran was shown to have a blood pressure reading of 130/68, and he denied having a history of high or low blood pressure in his report of medical history. The remainder of the Veteran's service treatment records is also clear for any signs of elevated blood pressure readings. Indeed, he was found to have a blood pressure reading of 120/80 at his December 1967 separation examination. Accordingly, the Board concludes that the Veteran's service treatment records are clear of any treatment for, or diagnosis of, hypertension. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). Evidence of record does not show that the Veteran sought treatment for hypertension immediately following his period of service or indeed for several decades thereafter. Therefore, the Board finds that hypertension did not manifest in service or within one year thereafter. In particular, the Board observes that the post-service records are negative for any findings of complaints, treatment or diagnosis of hypertension until many decades after service. In fact, the first post-service record that shows an elevated blood pressure reading was a January 1997 private treatment record following a motor vehicle accident which documented a blood pressure reading of 174/67. A diagnosis of hypertension was not indicated until April 1998, over thirty years after the Veteran's separation from service. These medical notes reflect a blood pressure reading of 165/95, and a diagnosis of hypertension. As previously noted above, 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 disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In addition to the lack of evidence showing that hypertension manifested during service or within close proximity thereto, as well as the absence of evidence of a continuity of relevant symptoms since active duty, the competent and credible evidence of record does not link the Veteran's current hypertension to his military service. As noted above, such evidence does not show that there was an event, disease, or injury in service to which current hypertension could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Nor is there any competent medical evidence of record, which links the currently-diagnosed hypertension to an event, disease or injury in service. While the post-service private treatment records reflect the Veteran's high blood pressure readings and his diagnosis of hypertension, there is nothing in these records that relates this disorder to his service. [In this regard, the Board acknowledges that, in an April 1998 private medical record, a treatment physician acknowledged the Veteran's "past history of hypertension." However, the doctor does not give a date of onset of the Veteran's hypertension or otherwise associate this disorder with the Veteran's service.] As discussed previously, the Veteran has not had a VA examination because the evidence of record does not corroborate his assertions that he developed hypertension in service or that he suffered an event, injury or disease in service and that his claimed disability is etiologically related to the in-service event, injury or disease. See 38 C.F.R. §§ 3.159(4)(b) & (c). In this case, the Board finds that the Veteran's STRs and private treatment records are entitled to more probative weight than his assertion that his hypertension arose as a result of service. His STRs reflect that he regularly sought treatment for problems with his back and other complaints. However, these records are clear for any mention of high blood pressure. The December 1967 separation examination reflecting a normal blood pressure reading and no diagnosis of hypertension is more probative than the remote assertions of the Veteran made in the context of a claim for benefits. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). In reaching this determination, the Board has also considered the lay assertions of record including the Veteran's October 2006 claim and his May 2007 statement. 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 latter 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 Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent to report symptoms because such actions come to him through his senses and, as such, require only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a layperson, however, he is not competent to offer opinions on a medical diagnosis or on causation. See Espiritu, supra; see also Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). Therefore, the Veteran's statements regarding etiology do not constitute competent medical evidence on which the Board can make a service connection determination. In sum, after considering the credibility and probative value of the evidence in this case, the Board finds the evidence against the Veteran's claim for service connection for hypertension to be more persuasive than the evidence in favor of the claim. Although the Veteran currently has hypertension and has indicated that the condition arose as a result of service, his STRs, including his separation examination, do not reflect any reports of complaints, treatment, or diagnosis of hypertension or high blood pressure. In addition, the first documented complaints of hypertension were not until several decades after the Veteran's separation from service. Curry, supra (contemporaneous evidence has greater probative value than history as reported by the Veteran); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After careful consideration, the Board concludes that the clinical and objective medical evidence is more accurate and more probative than the statements of the Veteran, offered approximately thirty years after his discharge from service. Curry, 7 Vet. App. at 68. Accordingly, and based on this evidentiary posture, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for hypertension. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, service connection for hypertension is not warranted. ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for anxiety is denied. Entitlement to service connection for bilateral lower extremity neuropathy is denied. Entitlement to service connection for hypertension is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims remaining on appeal must be remanded for further development. In this regard, the Board notes that, generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995). With regard to the Veteran's respiratory disorder claim, the Board acknowledges that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). In essence, VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9b acknowledges that inhalation of asbestos fibers can result in fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis or asbestosis) and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate). Chrysotile products have their initial effects on the small airways of the lungs and result in lung cancer more often. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9b. Lung cancer originates in the lung parenchyma rather than the bronchi and eventually develops in approximately 50 percent of persons with asbestosis. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9c. Current smokers who have been exposed to asbestos face an increased risk of developing bronchial cancer. Id. The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9d. Some of the major occupations involving exposure to asbestos include work in shipyards, insulation work, manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, as well as military equipment. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9f. Indeed, a high exposure to asbestos and a high prevalence of disease have been shown in insulation and shipyard workers. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9g. In fact, during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite because these varieties were used extensively in military ship construction. Many of these people have only recently come to medical attention due to the potentially long latent period between first exposure and the development of disease. Id. The pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules. Further, there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Thus, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Medical nexus evidence is required in claims for service connection for asbestos-related diseases associated with alleged asbestos exposure in service. VAOPGCPREC 4-2000 (April 13, 2000). Here, service treatment records, including the December 1967 separation examination, are absent any complaints of, or treatment for, auditory or respiratory disabilities. Post-service treatment records are also absent of a diagnosis of, or treatment for, bilateral hearing loss, tinnitus, or a respiratory disorder. Significantly, however, with regard to the bilateral hearing loss and tinnitus claims, it is undisputed that the Veteran was a pipefitter aboard the U.S.S. COONTZ. The RO has therefore conceded in-service noise exposure. Additionally, as to the claimed respiratory disorder, the RO has conceded in-service exposure to asbestos based upon the Veteran's military occupational specialty. Moreover, the Veteran contends that he has hearing loss, tinnitus, and a respiratory disorder that are related to his service. In this regard, the Board notes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see also Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The Board acknowledges that the Veteran has not been accorded VA examinations pertinent to his bilateral hearing loss, tinnitus, and respiratory disorder claims. Thus, there are no medical opinions of record that address the matter of nexus of the Veteran's hearing, tinnitus, and respiratory complaints to the conceded in-service noise exposure and asbestos exposure. Based on this evidentiary posture, the Board concludes that VA examinations are necessary to determine whether the Veteran has hearing loss, tinnitus, and/or a respiratory disorder that are related to his service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2011) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim; see also Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of his hearing loss and tinnitus shown. The claims folder should be made available to and reviewed by the examiner. The examination report should state that the claims folder has been reviewed. All necessary studies, including audiological testing, should be performed. The examiner should either diagnose or rule out bilateral hearing loss and/or tinnitus. The examiner should provide complete audiological test results including puretone thresholds and speech recognition scores using Maryland CNC testing. The examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any bilateral hearing loss and tinnitus diagnosed on examination had its(their) clinical onset in service or is(are) otherwise related to the Veteran's military service, to include his conceded in-service acoustic trauma/noise exposure. Complete rationale should be given for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Also, schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disorder shown. The claims folder should be made available to and reviewed by the examiner. The examination report should state that the claims folder has been reviewed. All necessary studies should be performed. The examiner should either diagnose or rule out a respiratory disorder. If a respiratory disorder is diagnosed, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any respiratory disorder diagnosed on examination had its clinical onset in service or is otherwise related to the Veteran's military service, to include his conceded in-service asbestos exposure. Complete rationale should be given for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, readjudicate the issues of entitlement to service connection for bilateral hearing loss and tinnitus and entitlement to service connection for respiratory disorder, to include as due to in-service asbestos exposure. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2011). He has the right to submit additional evidence and argument on the matters that 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs