Citation Nr: 1213116 Decision Date: 04/11/12 Archive Date: 04/19/12 DOCKET NO. 08-12 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and alcohol abuse. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss, and if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, and if so, whether service connection is warranted. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory/lung disorder, to include chronic obstructive pulmonary disorder (COPD) and lung nodules, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to February 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. An acquired psychiatric disorder, to include a psychosis, was not identified during service or within the one-year period following the Veteran's discharge from active duty, and the preponderance of the competent evidence is against finding that any currently diagnosed psychiatric disorder is related to his period of military service or any event thereof; under the facts of this case entitlement to service connection for a disability resulting from alcohol abuse is barred as a matter of law. 2. The Veteran's claim of service connection for hearing loss was denied in a March 2004 rating decision; the RO provided notice of this action in March 2004, but a timely appeal was not perfected. 3. The evidence added to the record since the March 2004 RO decision is new in that it relates to previously unestablished facts necessary to substantiate the claim of service connection for hearing loss and includes information which raises a reasonable possibility of substantiating the claim. 4. The preponderance of the evidence does not show that the Veteran's diagnosed hearing loss is causally or etiologically related to his military service, nor was sensorineural hearing loss manifested within one year after service. 5. The Veteran's claim of service connection for tinnitus was denied in a March 2004 rating decision; the RO provided notice of this action in March 2004, but a timely appeal was not perfected. 6. The evidence added to the record since the March 2004 RO decision is new in that it relates to previously unestablished facts necessary to substantiate the claim of service connection for tinnitus and includes information which raises a reasonable possibility of substantiating the claim. 7. The preponderance of the evidence does not show that the Veteran's diagnosed tinnitus was demonstrated in service, and it is not shown to have been otherwise related to service. 8. The Veteran's claim of service connection for a lung condition (to include due to asbestos exposure) was denied in a March 2004 rating decision; the RO provided notice of this action in March 2004, but a timely appeal was not perfected. 9. The evidence added to the record since the March 2004 RO decision is new in that it relates to previously unestablished facts necessary to substantiate the claim of service connection for a respiratory/lung disorder, to include COPD and lung nodules and includes information which raises a reasonable possibility of substantiating the claim. 10. The preponderance of the evidence does not show that the Veteran's diagnosed restrictive pulmonary disease was demonstrated in service, and it is not shown to have been otherwise related to service. CONCLUSIONS OF LAW 1. The Veteran is not entitled to service connection for an acquired psychiatric disorder, to include anxiety and alcohol abuse. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303(d), 3.304, 3.307, 3.309 (2011). 2. Since the final March 2004 rating decision, new and material evidence has been submitted to reopen the claim of service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 3. Service connection is not warranted for hearing loss. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2011). 4. Since the final March 2004 rating decision, new and material evidence has been presented to reopen the claim of service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 5. Service connection is not warranted for tinnitus. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 6. Since the final March 2004 rating decision, new and material evidence has been presented to reopen the claim of service connection for a respiratory/lung disorder, to include COPD and lung nodules. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 7. Service connection is not warranted for a respiratory/lung disorder, to include COPD and lung nodules. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present appeal, the appellant was provided notice that met these requirements in letters dated in August 2006 and February 2007. These letters met the timing requirement as they were sent before the June 2007 rating decision. Moreover, the content of the notices, including enclosures "How You Can Help and How VA Can Help You" and "What the Evidence Must Show - Service connected comp," provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to the respective VA notices. With regard to the considerations regarding the need for notification of the evidence and information that is necessary to reopen a claim and what is necessary to establish the underlying claim for the benefit sought, there is no defect in this case. Kent v. Nicholson, 20 Vet. App. 1 (2006). In the August 2006 letter, the Veteran was advised of both the type of evidence needed to reopen his claims of service connection for hearing loss, tinnitus, and for COPD and asbestosis, and what was necessary to establish entitlement to the claimed benefits. The August 2006 letter looked at the bases used for the denial of service connection concerning the three instant claims (regarding the respiratory disorder claim, this was limited to the asbestosis aspect of the claim, though the notice did also include adequate notice as to the COPD aspect; see discussion below concerning addressing the matter of a new theory of causation for service connection for the same disease or injury that was the subject of a previously denied claim) as set out in the final March 2004 denial of the Veteran's claims. In addition, the letter made clear that, since the March 2004 RO decision, the crux of this case depended on showing that the Veteran in fact had hearing loss, tinnitus, and a lung disorder (including one due to exposure to asbestos) which was either incurred in or caused by his service. Accordingly, further development is not indicated. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. There is no evidence of any failure on the part of VA to further comply with VCAA that reasonably affects the outcome of this case. Here, the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a). The Veteran was provided with every opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. The Board is mindful of the fact that the Veteran has not been afforded a VA examination concerning his claim for service connection for an acquired psychiatric disorder. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion if such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 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). The case of McLendon held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case because the Veteran's service treatment/personnel records are absent for evidence of findings related to the Veteran's currently-claimed psychiatric-based disorders, and his post-service medical records are absent for evidence of symptomatology related to any of the claimed disorders until many years after the Veteran's separation from service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). The first medical record on file pertaining to the Veteran's claimed psychiatric disorders are dated in 1996. In addition, there is no indication that any diagnosed psychiatric-based disorder, such as anxiety, may be related to the Veteran's service. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain a medical examination or medical opinion in order to decide the psychiatric claim in this case. 38 C.F.R. § 3.159(c)(4)(i); see Duenas, 18 Vet. App. at 517, 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). VA examinations were obtained with regard to the claims for service connection for hearing loss, tinnitus, and for a respiratory (i.e., asbestosis and COPD) disorder. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June and July 2008 VA examinations and opinions obtained in this case are adequate, as they were predicated on a reading of the service and post-service medical records in the Veteran's claims file. The examiners considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and provided a reason for the opinion stated, considering the Veteran's history and the records reviewed. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the three service connection issues mentioned on appeal has been met. 38 C.F.R. § 3.159(c)(4). Factual Background The service treatment records include a March 1976 Report of Medical Examination at enlistment; clinical findings were normal, though some degree of bilateral hearing loss was noted at the 500 Hertz (Hz.) level. To this, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels (dB), and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran did provide a prior history of hay fever. A letter was supplied from a private physician, Dr. K.R.A., which noted that the Veteran had been seen since January 1968 for the management of an allergic rhinitis. A January 1977 letter from another private physician, Dr. L.D.M., notes that the Veteran was diagnosed in 1968 as having allergic rhinitis. A January 1977 Report of Medical Examination includes audiometer hearing test results, which show neither hearing loss for VA purposes (see 38 C.F.R. § 3.385) or abnormal hearing. As part of a January 1977 Report of Medical History the Veteran reported having had hay fever in the past, and a history of allergy shots for the past 10 years. An October 1979 Report of Medical Examination, conducted in association with the Veteran's release from active duty, includes audiometer hearing test results, which show neither hearing loss for VA purposes (see 38 C.F.R. § 3.385) or abnormal hearing. This report did show chest X-ray findings reflecting the presence of two small nodules approximately 3.5 millimeters (mm.) each in the left lung. It was noted that this was probably a calcified primary lesion. No signs of other pathology in the lungs, pleurae or mediastinum was noted. The Board finds particularly noteworthy that the Veteran in this case is not claiming, nor is it shown, that either his hay fever or allergic rhinitis increased in severity during his military service. An October 1996 private medical record includes complaints of anxiety. A July 1997 private medical record shows that the Veteran complained of stress-related problems. Another private medical record, dated in August 1997, shows a diagnosis of situational anxiety. The Veteran submitted a claim seeking service connection for hearing loss, tinnitus, and for a lung condition in April 2003. He alleged being exposed to asbestos while aboard three ships. See VA Form 21-526. A rating decision dated in March 2004 denied service connection for, in pertinent part, hearing loss, tinnitus, and lung condition (including due to asbestos exposure). The Veteran did not file a timely appeal after receiving notice of the denial in March 2004. The Veteran sought to reopen his service connection claims for hearing loss, tinnitus, and asbestosis in July 2006. See VA Form 21-4138. He added COPD and "nodules" for consideration with the previously denied lung disorder (respiratory) claim. A July 2002 private individual psychiatric evaluation shows complaints of depression and anxiety over the past three years following the incurrence of a work-related injury, at which time he injured his right hip and back. The Veteran also gave a history of anxiety symptoms occurring in 1995 after almost injuring himself in a work setting. Major depressive disorder was diagnosed. A July 2003 private psychiatric admission assessment report shows that the Veteran gave a four year history of panic attacks and anxiety. He indicated that his symptoms started after he incurred an injury while employed by the United States Postal Service. Generalized anxiety disorder was diagnosed. The Veteran was admitted, and an estimated length of stay of five days was noted. Another psychiatric admission report, from the same facility, and dated later in July 2003, shows that the Veteran had been admitted earlier in July for seven days. He was again admitted, with a diagnosis of generalized anxiety disorder. A private audio report, from Miracle Ear, was provided by the Veteran at the time he sought to reopen his hearing loss claim in July 2006. The report at that time was undated. Later, a duplicate of this form was put into evidence, containing a date of April 1, 2003. Bilateral hearing loss, as defined by VA in 38 C.F.R. § 3.385, was shown. An October 2003 VA nursing assessment note shows that the Veteran complained of anxiety/panic attacks. An October 2003 VA psychiatry attending note shows that the Veteran's mood and anxiety was noted to remain very unstable. A November 2003 VA mental health clinic treatment note includes a diagnosis of anxiety/depression; the disorder was reported to be stable. The Veteran reportedly had recently completed a four day recent inpatient stay for treatment of anxiety and depression. A February 2004 VA mental health clinic psychiatry note includes a diagnosis of anxiety disorder not otherwise specified. A December 2004 VA mental health clinic psychiatry note shows a diagnosis of generalized anxiety disorder. A June 2006 VA mental health clinic psychiatric note shows that a Board Certified Staff Psychiatrist commented that the Veteran had been under his care since December 2003, shortly after the Veteran's release from his October 2003 psychiatric hospitalization. He opined that the Veteran's 2003 psychiatric breakdown and his subsequent long stay in a residential nursing home was a "direct consequence" of the Veteran's serious back injury incurred while working for the post office. This injury, he added, had resulted in serious psychiatric problems and severe financial stress. In August 2006 the Veteran informed VA that in 1978 while stationed in Rota, Spain he started to abuse alcohol. He added that in November 1978 when transferred for duty in Iceland he began to experience stress and anxiety, with at that time his abuse of alcohol continuing. He added that when he was discharged in 1979 his anxiety problems did not go away, and that he attempted to cover them up until he had a breakdown in 2003 when he was treated by VA. A lay statement provided by it appears the Veteran's son shows that he claimed that the Veteran had a nervous disorder when he was discharged in 1980. Received in September 2006 are what appear to be photocopies of private medical records dated in 1994, showing diagnoses of hearing loss. A November 2006 VA mental health clinic psychiatric note includes a diagnosis of anxiety disorder not otherwise specified. A June 2007 rating decision, in pertinent part, found that service connection was not warranted for an acquired psychiatric condition, to include anxiety (also claimed as "nerves" and alcohol abuse). The rating decision also found that new and material evidence had not been submitted to reopen the previous March 2004 denial for hearing loss, and tinnitus, and for a lung disorder (to include due to asbestos exposure (now claimed to include COPD)). As part of his October 2007 notice of disagreement the Veteran added that he wanted VA to consider "lung nodules" as part of his lung-related claim. See VA Form 21-4138. The Veteran perfected a timely appeal to this decision. A July 2007 VA outpatient treatment record shows a diagnosis of continuous alcohol abuse. The Veteran was afforded a VA audio examination in June 2008. The Veteran told the examiner that his current hearing loss did not cause him any problems. The Veteran reported both in-service and post-service noise exposure. He also provided a history of bilateral tinnitus. Audiometric examination revealed bilateral hearing loss, as defined by VA in 38 C.F.R. § 3.385. The hearing loss was described as sensorineural in nature. The examiner opined that the diagnosed bilateral hearing loss and tinnitus were less likely as not caused by or the result of in-service noise exposure. As rationale for the supplied opinion, the examiner observed that normal hearing was shown in the course of the Veteran's March 1976 enlistment examination, as well as in January 1977 and November 1978. Normal hearing was also observed to have been found to be present in the course of the Veteran's separation examination. The examiner further commented that the service treatment records were silent as to both hearing loss and tinnitus. She opined that the onset of the current bilateral hearing loss and tinnitus did not occur while the Veteran was in the military, and, based on the evidence of record, the hearing loss and tinnitus were less likely than not caused by or the result of military noise exposure. The Veteran was afforded a VA respiratory examination in July 2008. He reported being diagnosed with nodules on his left lung at the time of his service discharge. He complained of trouble breathing and bouts of coughing since that time. Examination revealed no abnormal respiratory findings. No conditions were noted to be present reflective of pulmonary restrictive disease. Chest X-ray testing showed no infiltrate or pleural effusion. The supplied diagnosis was mild restrictive pulmonary disease. The examiner opined that the Veteran's current respiratory problems were not likely associated with the lung nodules which were diagnosed at the time of his service separation. He added that the Veteran's current respiratory disorder was less likely than not related to any other incident that may have occurred during his military service. The examiner, as rationale for the supplied opinion, noted that calcified granulomas are scars within the lung tissue usually caused by previous lung infections. The lesions were noted to nearly always be benign and cause no impairment in lung function. The examiner equated the description of "calcified primary lesion" shown on the Veteran's separation examination report as accurately describing a calcified granuloma. These nodules, he added, were a benign finding without clinical symptoms. In observing that the Veteran was a participant in the military's Asbestos Surveillance program indicating at least potential exposure to asbestos, the examiner commented that with no current radiographic findings to suggest an asbestos-related pathology, the current respiratory condition was less likely as not related to an incident that may have occurred during the Veteran's military service. In support of this opinion, the examiner cited the following medical treatise source: Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos, American Journal of Respiratory Critical Care Medicine. An October 2008 VA psychiatry consult note includes a diagnosis of generalized anxiety disorder. The Veteran is shown to be in receipt of Workers' Compensation benefits for a right hip injury received while working at the post office. Records from the U.S. Postal Service and records associated with Workers' Compensation claims filed with the U.S. Department of Labor's Office of Workers' Compensation Programs (OWCP) fall under the term "records in the custody of a Federal department or agency" in 38 C.F.R. § 3.159 (c)(2). Golz v. Shinseki, 590 F.3d 1317 (2010) (finding that VA must seek to obtain relevant records under 38 U.S.C.A. § 5103A when "there exists a reasonable possibility that the record could help the Veteran substantiate his claim for benefits"). While the Board observes that an attempt has not been undertaken to obtain records, such a attempt is not necessary as they are not relevant, i.e., the records concern a disorder, right hip, not now before the Board for appellate consideration. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. 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 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 for certain diseases, including psychoses and sensorineural hearing loss, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Although the Veteran asserts that his current bilateral hearing loss is related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); 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"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. With respect to claims for service connection for hearing loss, as above noted, the Court has held that the threshold for normal hearing is from 0 to 20 decibels (dB), and that higher threshold levels indicate some degree of hearing loss. Hensley. The Court further opined that 38 C.F.R. § 3.385 then operated to establish when a hearing loss could be service connected. Hensley, at 159. For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. The Board also notes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. In addition, the director of the VA Compensation and Pension Service observed that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders. It was further noted that delayed-onset tinnitus must also be considered. To establish service connection for tinnitus, the Veteran is not obliged to show that his tinnitus was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Regarding asbestos-related diseases, there is no specific statutory or regulatory provision, pertaining to exposure to asbestos. However, the VA Adjudication Procedure Manual, M21-1 (M21-1) [in December 2005, the M21-1 was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1], the opinions of the Court, and VA's General Counsel have a general framework. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. 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 since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate claims of service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1 provides that when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (M21-1, Part III, par. 5.13(b)); M21-1, Part VI, par. 7.21(d)(1); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (M21-1, Part VI, par. 7.21(d)(1). The M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate). M21-1, Part VI, par. 7.21(a)(1) & (2). Also, the M21-1 provides that for a clinical diagnosis of asbestosis, the record must show a history of exposure and radiographic evidence of parenchymal lung disease (M21-1, Part VI, par. 7.21(c)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108. For applications filed after August 29, 2001, as were the applications to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Analysis Acquired Psychiatric Disorder With regard to the issue of an acquired psychiatric disorder, the service medical records are negative for any complaints or findings of a psychiatric disorder. There is also no indication that the Veteran had a diagnosis of a psychosis which had become manifested to a compensable degree during the first year following his separation from service. See 38 C.F.R. §§ 3.307, 3.309. Rather, post-service the Veteran first complained of anxiety in 1996, and was diagnosed as having situational anxiety in 1997, approximately 19 years after his separation from service in 1980. There is no competent medical evidence of record relating any post-service acquired psychiatric disorder to any in-service disease or injury. The normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Moreover, there is no competent medical evidence linking a diagnosed psychiatric disorder to service. Since 1996, some of the disorders which have been diagnosed include depression, anxiety, and generalized anxiety disorder, none of which have been etiologically linked by competent evidence to the Veteran's period of service. In fact, a VA treating staff psychiatrist of the Veteran, in June 2006, opined that the Veteran's psychiatric breakdown in 2003 was a "direct consequence" of his serious back injury incurred while working for the post office. No opinion to the contrary is of record. The Board also observes that a July 2007 VA outpatient treatment record shows a diagnosis of continuous alcohol abuse. With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m). Alcohol abuse is use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301. Alcohol abuse, unless it is a secondary result of an organic disease or disability, is considered to be willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). The law prohibits a grant of direct service connection for alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Public Law No. 101-508, Section 8052, 104 Stat. 1388 (1990); VAOPGCPREC 2-98 (February 10, 1998). However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or a symptom of, a service-connected disability. In order to qualify for service connection, the veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by the primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). A review of the record reveals the Veteran has not been granted service connection for any disability. Accordingly, entitlement to service connection for a disability resulting from alcohol abuse is barred as a matter of law. For the reasons and bases provided above, the Board concludes that the evidence in this case preponderates against the claim for service connection for an acquired psychiatric disorder. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. at 54. Hearing Loss and Tinnitus Service connection for hearing loss and tinnitus was denied by the RO in March 2004. The RO determined that the record included no evidence to show that the Veteran had either hearing loss or tinnitus, or that either claimed disorder was incurred in or caused by the Veteran's service. That RO decision is final. 38 U.S.C.A. § 7105. The claims may not be reopened unless new and material evidence is received. 38 U.S.C.A. § 5108. For the evidence to be new and material in this case, it must show that that the Veteran either has hearing loss and/or tinnitus, or that either claimed disorder is determined to have been either incurred in or caused by his military service. With these considerations in mind, the Board has reviewed the record, with particular attention to the additional evidence received since the March 2004 RO decision. After reviewing the record, the Board finds that the additional evidence received since the final decision - concerning both claims -- is new and material within the meaning of 38 C.F.R. § 3.156(a). The evidence associated with the Veteran's claims file subsequent to the March 2004 RO decision includes, but is not limited to, a private medical record dated in February 1994 showing a diagnosis of hearing loss, an April 2003 private audiogram indicating the presence of bilateral hearing loss as defined by VA in 38 C.F.R. § 3.385, and the report of a June 2008 VA audio examination which includes findings of both hearing loss and tinnitus. Obviously, this evidence is new in that it was not previously of record. Moreover, this evidence relates to an unestablished fact necessary to substantiate his claim, i.e., the presence of hearing loss and tinnitus. Further, as its credibility is presumed, this evidence raises a reasonable possibility of substantiating the claim. Justus, 3 Vet. App. at 513. For these reasons, the Board finds that the additional evidence received since March 2004 warrants a reopening of the Veteran's claims of service connection for hearing loss and tinnitus, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). In conclusion, new and material evidence having been received, the claims of entitlement to service connection for hearing loss and tinnitus are reopened. Having reopened the Veteran's claims, the Board must now determine whether the reopened claims for entitlement to service connection hearing loss and tinnitus may be granted on the merits, de novo. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for either hearing loss or tinnitus. There were no in-service findings of either claimed disorder in the Veteran's service treatment records. Further, there was no definitive diagnosis of sensorineural hearing loss within one year after the Veteran's separation from service in February 1980. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). Further, and of particular note, a VA examiner, after affording the Veteran an audio examination in June 2008 (at which time she reviewed the medical records, recorded a thorough medical history from the Veteran, and examined the Veteran) opined that it was less likely than not that both the Veteran's hearing loss and tinnitus was "caused by or a result of military service." As noted above, the examiner supplied detailed rationale for her supplied opinion. The Board also parenthetically observes that the Veteran in the course of the examination informed the examiner that his current hearing loss did not cause him any problems. While as noted above to establish service connection for tinnitus the Veteran is not obliged to show that his tinnitus was present during active military service, if, as here, there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey. Given the above facts, the Board finds that such a nexus opinion is clearly not of record. As noted, the VA examiner who conducted the June 2008 VA audio examination clearly supplied, with rationale, a negative nexus opinion. There is no competent evidence linking tinnitus to service, and as noted, the separation medical examination is negative for complaints or findings of tinnitus. Accordingly, after considering all of the evidence of record, the Board concludes that the weight of the evidence is against finding that the veteran has service-related tinnitus. Hence, service connection is denied. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. In this case, although the Veteran may believe that his current hearing loss and tinnitus is due to his military service, the Board concludes that his own lay statement as to the etiology of the current disorders is not competent evidence because unlike, for example, varicose veins or a dislocated shoulder, hearing loss is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to an injury or disease in military service without medical expertise. Barr (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, in this case, the Veteran's lay statements as to etiology do not constitute competent evidence. Accordingly, the Board concludes that service connection for hearing loss and tinnitus is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.102, 3.303, 3.385 (2011). Respiratory/Lung Disorder, to include COPD and Lung Nodules Service connection for a "lung condition including due to asbestos exposure" was denied by the RO in March 2004. The RO determined that the record included no evidence to show that the Veteran had a lung condition, to include one due to asbestos exposure. The RO also found that in-service exposure to asbestos had not been established. That RO decision is final. 38 U.S.C.A. § 7105. The claim may not be reopened unless new and material evidence is received. 38 U.S.C.A. § 5108. For the evidence to be new and material in this case, it must essentially show that the Veteran has a lung disorder etiologically related to his military service. The evidence associated with the Veteran's claims file subsequent to the issuance of the March 2004 rating decision also includes assertions made by the Veteran that his claimed respiratory disorder includes COPD and lung nodules. Concerning this, the Board notes that a new theory of causation for service connection for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim but rather should be regarded as a claim to reopen the previously denied claim, and if the evidence supporting the Veteran's new theory of causation constitutes new and material evidence, then VA must reopen the Veteran's claim. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); see also Robinson v. Peake, 21 Vet. App. 545, 550 (2008), citing Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd, 421 F.3d 426, 1346, 1349 (Fed. Cir. 2005) (noting that a final denial on one theory is a final denial on all theories); see also Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997). Thus, the Veteran's claim for service connection for COPD and lung nodules is properly construed as a claim to reopen the previously denied claim for service connection for a respiratory/lung disorder. With these considerations in mind, the Board has reviewed the record, with particular attention to the additional evidence received since the March 2004 RO decision. After reviewing the record, the Board finds that the additional evidence received since the final decision is new and material within the meaning of 38 C.F.R. § 3.156(a). The evidence associated with the Veteran's claims file subsequent to the March 2004 RO decision includes, in pertinent part, findings associated with a VA respiratory examination afforded the Veteran in July 2008. As noted, the Veteran has claimed to have a respiratory-related disorder due to his military service. In this regard, the July 2008 VA examination included a diagnosis of mild restrictive pulmonary disease. Obviously, this evidence is new in that it was not previously of record. Moreover, this evidence relates to an unestablished fact necessary to substantiate his claim, i.e., the presence of a respiratory-related disorder. This evidence raises a reasonable possibility of substantiating the claim. Justus, 3 Vet. App. at 513. For these reasons, the Board finds that the additional evidence received since March 2004 warrants a reopening of the Veteran's claim of service connection for a respiratory/lung disorder, to include COPD and lung nodules, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). In conclusion, new and material evidence having been received, the claim of entitlement to service connection for a respiratory/lung disorder is reopened. Having reopened the Veteran's claim, the Board must now determine whether the reopened claim for entitlement to service connection a respiratory/lung-related disorder may be granted on the merits, de novo. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a respiratory/lung disorder, to include COPD and lung nodules. There were no in-service findings of either restrictive pulmonary disease or COPD in the Veteran's service treatment records. Additionally, there are no post-service VA or private treatment records reporting a current diagnosis or treatment for asbestosis or any asbestos-related conditions. As above discussed, mild restrictive pulmonary disease was diagnosed in the course of a VA respiratory examination conducted in July 2008. The examiner, however, opined that the Veteran's current respiratory problems were not likely associated with the lung nodules which were diagnosed at the time of his service separation. He also stated that the Veteran's current respiratory disorder was less likely than not related to any other incident that may have occurred during his military service. The examiner, as rationale for the supplied opinion, noted that calcified granulomas are scars within the lung tissue usually caused by previous lung infections. The lesions were noted to nearly always be benign and cause no impairment in lung function. The examiner equated the description of "calcified primary lesion" shown on the Veteran's separation examination report as accurately describing a calcified granuloma. These nodules, he added, were a benign finding without clinical symptoms. Also of note, the examiner commented that with no current radiographic findings to suggest an asbestos-related pathology, the current respiratory condition was less likely as not related to an incident that may have occurred during the Veteran's military service. In this case, although the Veteran may sincerely believe that his current restrictive pulmonary disease is due to his military service, to include being related to exposure to asbestos therein, the Board concludes that his own lay statement as to the etiology of the current disorder is not competent evidence. Barr (lay testimony is competent to establish the presence of varicose veins); Woehlaert (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, in this case, the Veteran's lay statements as to etiology do not constitute competent evidence. Accordingly, the Board concludes that service connection for respiratory/lung disorder, to include COPD and lung nodules is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.102, 3.303 (2011). (continued on next page) ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and alcohol abuse is denied. As new and material evidence has been submitted to reopen the claim of service connection for hearing loss, the appeal to this extent is allowed. Entitlement to service connection for hearing loss is denied. As new and material evidence has been submitted to reopen the claim of service connection for tinnitus, the appeal to this extent is allowed. Entitlement to service connection for tinnitus is denied. As new and material evidence has been submitted to reopen the claim of service connection for respiratory/lung disorder, to include COPD and lung nodules, the appeal to this extent is allowed. Entitlement to service connection for respiratory/lung disorder, to include COPD and lung nodules is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs