Citation Nr: 1217568 Decision Date: 05/16/12 Archive Date: 05/24/12 DOCKET NO. 07-14 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a respiratory disorder, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant, S.C. ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appellant served in the Army National Guard from July 1947 to July 1950. He had periods of active duty for training (ADT) from July 12, 1947 through July 27, 1947; August 6, 1948 through August 20, 1948; and August 6, 1949 through August 20, 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appellant's file has since been transferred to the RO in Louisville, Kentucky. A Travel Board hearing was held in January 2008 with the appellant in Louisville, Kentucky, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The appellant's claims were then remanded in September 2008 and March 2010 for additional development. That development has been completed, and the case is once again before the Board for appellate review. The appellant recently submitted additional evidence in support of his claims, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2011) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). FINDINGS OF FACT 1. Hearing loss is not etiologically related to service. 2. Tinnitus is not etiologically related to service. 3. Interstitial lung disease is not etiologically related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). 2. Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). 3. A respiratory disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2011). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to the initial adjudication of the appellant's claims, a letter dated in December 2004 was sent to the appellant in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided prior to the initial adjudication of the appellant's claims did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. The appellant's personnel records, VA treatment records, private treatment records, VA authorized examination reports, lay statements, and hearing transcript have been associated with the claims file. The Board notes that, with the exception of an enlistment examination, the appellant's service treatment records have not been associated with the claims file. VA determined that all efforts to obtain the records have been exhausted, and further attempts would be futile. See April 2007 Memorandum. The Veteran was notified of this in April 2007. The Board is mindful that, in a case such as this, where service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). The Board also notes that the Veteran was afforded VA examinations with respect to his disabilities. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions as to the nature and etiology of the Veteran's claimed hearing loss, tinnitus, and respiratory disorder. The Board notes that the VA examiners who conducted the appellant's March 2009 and June 2010 VA audiology examinations were unable to provide an opinion as to the etiology of the Veteran's hearing loss with associated tinnitus without resort to speculation. The Court recently held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. As discussed below, however, the examiners in this case provided a basis for their speculative opinions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the appellant with opportunity to submit evidence and arguments in support of his claim. The appellant and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may 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) (2011). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2011). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(1), (3) (2009). Generally, an individual who has only Reserve or National Guard service (ADT or IDT with no active duty) is not a veteran as legally defined. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307; Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). 1. Hearing Loss and Tinnitus a. Evidence The appellant underwent an enlistment examination in July 1947. He scored 15/15 bilaterally on whispered voice testing. As noted above, there are no other treatment records available from service. In a September 2004 statement, the appellant reported that he was exposed to extreme noise in service from working as a vehicle mechanic, and also from delivering ammunition to the firing batteries. Private treatment records dated September 2005 show the appellant was diagnosed with high frequency sensorineural hearing loss secondary to noise exposure and the aging process. He reported being in the National Guard for 3 years, and that he was exposed to noise during that time. He also worked with some noise from bulldozers and backhoes through the years. The treating physician stated that it was reasonable to assume that some of his problems were associated with noise exposure on the firing range and in the motor pool when he was in the National Guard 50 years earlier. The appellant testified at a Travel Board hearing in January 2008. He stated that his duties included delivering ammunition to the artillery firing range, and he was exposed to the noise there. He was also exposed to noise on the rifle range. He was never afforded any hearing protection, and was exposed to these noises every day of his two-week trainings. He also experienced ringing in his ears after being exposed to the artillery noise, which had persisted ever since that time. After service, he worked as an operating engineer for almost 30 years, and was exposed to the noise of a motor running at various throttle levels. He stated that this was not nearly as loud as his noise exposure during service, and he utilized hearing protection for most of his career. The appellant's wife stated that she had married him when he was 28, and even at that time, he had trouble with his hearing. He had also complained about ringing in his ears for the duration of their marriage. He had not sought treatment for his conditions for many years due to financial concerns. The appellant underwent a VA examination in March 2009. He reported difficulty with hearing in all listening situations, and complained of tinnitus. He stated that he was in the Army for 3 years and exposed to artillery noise. After service, he operated heavy equipment and ran a tree trimming business for a period of time. When he was younger, he hunted with firearms, right-handed and without hearing protection. He also reported bilateral, recurrent tinnitus that had been present for many years. On examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 65 95 LEFT 35 45 65 80 90 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 64 percent in the left ear. The examiner diagnosed sensorineural hearing loss bilaterally, and acknowledged that the Veteran was exposed to a great deal of noise from artillery, as well as occupational noise from a tree trimmer, truck driving, operating heavy equipment, and hunting. After a review of the claims file, the examiner submitted an addendum in which he noted the 15/15 whispered voice testing at enlistment. He also stated that the Veteran's civilian noise exposure was for a much longer period than noise exposure in the National Guard. Tinnitus was related to hearing loss and also affected by civilian noise exposure. While his inclination was to believe that civilian noise exposure was the cause of the current hearing loss and tinnitus, the examiner could not give an opinion without a full review of medical and audiometric service records, which were unavailable. Private treatment records dated October 2009 show the appellant complained of a 50-year history of hearing loss. He reported being in the military for 3 years and being exposed to heavy artillery fire on multiple occasions. He did not have hearing protection. After the military, he worked in various jobs but was not exposed to any loud noises or acoustic trauma. The treating physician stated that the appellant had the typical pattern for hearing loss secondary to acoustic trauma, and the physician did not see anything in the appellant's history that would indicate it would be due to anything other than his military service and exposure to artillery during that time. The appellant also had tinnitus secondary to his hearing loss. The appellant submitted a December 2009 statement in support of his claim. He stated that the history noted in the March 2009 VA examination was not accurate. Specifically, statements that he operated heavy equipment, ran a tree trimming business, and was an avid right-handed hunter with firearms, were all untrue. He stated that he had gone hunting on occasion, that his left ear was worse, and that he had operated a small hydraulic backhoe, which was not "heavy equipment." The tree trimming that he had performed was not done with power equipment. The appellant was afforded an additional VA examination in June 2010. The claims file was reviewed by the examiner, who noted the appellant's 15/15 bilateral whispered voice test in service, as well as the September 2005 records, March 2009 VA examination, and October 2009 records. The appellant reported exposure to field artillery during service without the benefit of hearing protection. After service, he operated hydraulic equipment for 20 years and worked on Coast Guard boats for 6 or 7 years. He also engaged in occasional hunting, but that was over 40 years earlier. He also had intermittent, bilateral tinnitus that was present most of the time. He could not provide an exact onset date for tinnitus beyond "several years ago." On examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 50 65 100 LEFT 50 45 60 75 80 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 76 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and tinnitus. However, she noted that the claims file contained no separation examination test results, and therefore the appellant's hearing sensitivity at the time of discharge was unknown and could not be speculated. Moreover, the claims file contained contradictory information regarding the appellant's occupational and recreational noise exposure. Therefore, the examiner could not provide an opinion regarding hearing loss without resorting to mere speculation. Because tinnitus was highly correlated to hearing loss, and because the appellant could not provide a more specific date of onset for tinnitus, an opinion regarding tinnitus could not be provided without resorting to mere speculation. b. Analysis Based on the evidence of record, the Board finds that service connection for hearing loss and tinnitus is not warranted. The appellant has been diagnosed with both conditions. However, the overall weight of the evidence is against a finding that either hearing loss or tinnitus was incurred in or is otherwise attributable to the appellant's active duty for training periods in service. The record contains several opinions addressing the etiology of the appellant's disabilities. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. Records from September 2005 include a statement from the appellant's treating physician that it was reasonable to assume that some of his problems were associated with noise exposure on the firing range and in the motor pool when he was in the National Guard 50 years ago. Although this opinion serves as a positive nexus opinion, the Board notes that the opinion is equivocal in nature, as the physician stated that "it was reasonable to assume" a positive correlation between the appellant's period of service and current hearing loss. Further, the physician attributed at least a fraction of the appellant's current hearing disorder to the natural aging process, and he did not analyze the appellant's reported post-service noise exposure to bulldozers and backhoes. It is also unclear as to whether the physician offered his opinion within the proper the context of the appellant's service, as the appellant reported being in the National Guard for 3 years but in fact had only 6 weeks of total ADT. Therefore, although a current, competent diagnosis of hearing loss was provided, as well as a positive nexus to the appellant's period of service, the opinion is not probative, as a rationale was not provided to support the opinion. The failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The physician did not comment at all as to the etiology of the appellant's tinnitus. Similarly, the October 2009 private opinion stated that the appellant had the typical pattern for hearing loss secondary to acoustic trauma, with secondary tinnitus, and the physician did not see anything in the appellant's history that would indicate it would be due to anything other than his military service and exposure to artillery during that time. However, these records also show the appellant reported no occupational exposure to loud noises or acoustic trauma. This contradicts the history provided to the September 2005 physician, the March 2009 VA examiner, and the June 2010 VA examiner. The appellant himself testified during his January 2008 hearing that he experienced some occupational noise exposure. Therefore, this opinion is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate history provided by the Veteran is not probative). The remaining opinions addressing the appellant's hearing loss and tinnitus are the March 2009 and June 2010 VA examinations. Unfortunately, neither examiner could opine as to the etiology of these disabilities without access to the appellant's service treatment records. As these records were not available, they could only resort to mere speculation. The Board notes that inconclusive statements from doctors and examiners cannot be used to rule out a correlation between a current disorder and a claimant's military service. Bloom v. West, 12 Vet. App. 185 (1999) (holding that speculative medical opinions are inadequate for rating purposes). Rather, where the medical professional cannot provide an opinion without resort to speculation, the statement provides neither positive nor negative support for service connection. Fagan v. Shinseki, 573 F.3d 1282, 1289-90 (Fed. Cir. 2009). In sum, the competent medical evidence of record is insufficient to warrant a grant of service connection for the appellant's hearing loss and tinnitus. The Board has considered the appellant's own statements made in support of his claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In Robinson v. Shinseki, the Federal Circuit held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence. The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury-to determine whether to grant service connection. See Robinson v. Shinseki, 312 Fed. Appx. 336 (2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). The Board observes that this Federal Circuit decision is nonprecedential. See Bethea v. Derwinski, 252, 254 (1992) (a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"). The Board believes that if Bethea applies to Court decisions, it surely applies to those of a superior tribunal, the Federal Circuit. Here, the appellant is competent to report ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002). However, the Board does not find that either the appellant or his wife is competent to render a diagnosis of hearing loss. While the appellant and his wife are certainly competent to report observable symptoms, neither has been shown to be competent to identify specific disorders based solely on observation. Further, while the appellant has asserted that his disabilities are the result of military noise exposure, he has not demonstrated the medical knowledge required to establish such an etiological nexus. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, although the statements of the appellant and his wife offered in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a medical nexus between these claimed disorders and the appellant's periods of ADT. Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, supra. As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). As noted, competency of evidence differs from weight and credibility. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, supra; 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"). While the Board acknowledges that the appellant and spouse are competent to provide evidence of their own experiences, there are no documented complaints of either hearing loss or tinnitus for over 50 years after the appellant's discharge. The Board acknowledges the appellant's contention that he did not seek treatment due to financial considerations. However, the claims file contains treatment records dated back to 1993, and complaints of hearing loss and tinnitus are not documented until 2004. These facts weigh heavily against the claim he now makes that he has had problems ever since service. The Court has indicated that the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). For these reasons, service connection for hearing loss and tinnitus is not warranted. 2. Respiratory Disorder a. Applicable Law With regard to the asbestosis claim, the appellant has alleged that he has a respiratory disorder as a result of in-service asbestos exposure. Specifically, he stated that brake pads installed during periods of ADT from 1947 to 1950 contained asbestos. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M21-1 provisions regarding asbestos exposure were amended. The newer M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. [emphasis added]. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. b. Evidence A private medical report dated February 1993 indicates that the appellant reported "a significant history" of asbestos exposure in the past and worked around asbestos insulation in pipes. He also smoked in the past, but quit in 1988. The treating physician diagnosed hemoptysis, probably related to bronchitis, and rule out endobronchial lesion. A December 1993 CT scan showed numerous calcified hilar mediastinal lymph nodes and some noncalcified nodes in the right hilum. The treating physician suspected that the appellant had bronchitis as the cause of his hemoptysis, with possible bronchiectasis in the right upper lobe. Additional records dated August 1996 through May 2003 reflect diagnoses of bronchitis, bronchiectasis, lung scarring, and a history of asbestos exposure. A May 2003 CT scan showed changes consistent with prior granulomatous disease with some calcifications. There was no acute pulmonary process. A September 2005 statement from the appellant's representative stated that the appellant worked in the motor pool during service, changing brake pads and cleaning brake drums. He used compressed air for these duties. The brakes were made with asbestos, and no respiratory protection was afforded. The appellant also submitted medical reports from a private physician dated September 2005 and November 2005. In these reports, the physician stated that a recent CT scan revealed evidence of mild interstitial lung disease. A diagnosis of mild chronic obstructive pulmonary disease (COPD) was provided. A history of asbestos exposure was noted, and the physician opined that the appellant's current lung disorder may have been the result of prior asbestos exposure. As to a diagnosis of asbestosis, the physician recommended an examination by a B-reader or at least an occupational medicine specialist who evaluates patients regarding the possibility of pneumoconiosis on a regular basis. The Veteran testified at a Travel Board hearing in January 2008. He reported spending time working in the motor pool in service, which included work on brake pads and drums. He utilized an air hose to blow dust off the equipment. He did not have a mask or other respiratory protection. He denied any civilian asbestos exposure. The Veteran underwent a VA examination in July 2009. The appellant provided a history of exposure to asbestos during his period of ADT, as well as a history of cigarette smoking. The ultimate diagnosis was a history of asbestos exposure with mild chronic obstructive pulmonary disease. The examiner noted that the appellant "doesn't need a B-reader." However, in the opinion, the examiner stated, "Needs a B-reader to officially diagnose asbestosis. Until then, this examiner is unable to form an opinion concerning the relationship between the Veteran's current lung disorder and asbestos exposure without resorting to mere speculation." The appellant was afforded an additional examination in June 2010. He reported servicing military vehicles that had asbestos-coated brakes and clutches, and exposure to burning powder bags. He explained that cleaning of brakes and clutches involved blowing them off with an air hose. There was no breathing protection. He denied any civilian asbestos exposure. He reported a history of smoking 2 to 3 packs a day for 51 years, but stopped smoking in 1988. He also reported a 51-year history of dyspnea on exertion that had worsened over time. He also had a dry cough, dizziness, and some phlegm production. Based on a review of the claims folder, a history provided by the appellant, and a physical examination, the examiner diagnosed interstitial lung disease (asbestosis) that was at least as likely as not secondary to military asbestos exposure. She noted that the appellant's presentation was compatible with the accepted diagnostic criteria put forth by the American Thoracic Society, in that he had the presence of interstitial lung disease, known prolonged exposure, and no history of other causes. The 51 years of tobacco use had a synergistic effect on the development of asbestosis, and the presence of an overlying mild obstructive pulmonary disease was consistent with that tobacco use. The examiner noted that there were no B-reader capabilities at that facility. The examiner provided an addendum in January 2011. She had been informed that the appellant did not have active duty service. Rather, he had 2 weeks of active duty for training for each year of National Guard service. She further stated that while the appellant exhibited a pattern of interstitial lung disease that was compatible with asbestosis, the available literature estimated a 1 percent risk for developing asbestosis after a cumulative dose of 10 fiber-year/m3. Given the new information regarding the appellant's service, the examiner could not determine whether the appellant had asbestosis without resorting to speculation. She indicated that a B-reader could more accurately and fairly give an opinion. The appellant underwent a CT scan in September 2011, and the results were interpreted by a B-reader. There was significant calcified mediastinal and hilar adenopathy with multiple calcifications in the lung parenchyma consistent with old granulomatous disease. There was no evidence of asbestos exposure and no evidence of pleural plaque or pleural calcification. After reviewing this information, the June 2010 examiner concluded that the B-reader interpretation of the CT scan indicated no evidence of asbestos related disease. Given the appellant's 2 week periods of training for the National Guard, it was less likely than not that his interstitial lung disease was secondary to military asbestos exposure. It was more likely that the interstitial disease was representative of idiopathic pulmonary fibrosis or a different, unreported environmental exposure. c. Analysis Based on the evidence of record, the Board finds that service connection for a respiratory disorder is not warranted. The appellant is currently diagnosed with interstitial lung disease. However, the overall weight of the evidence is against a finding that it is etiologically related to the appellant's periods of ADT in service. As noted earlier, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The September 2005 and November 2005 letters from the appellant's private physician indicated that his current lung disease may have been the result of prior asbestos exposure. However, service connection may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. at 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a plausible claim); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998). In addition, the physician indicated that a diagnosis of asbestosis would require a B-reader or occupational medicine specialist. Therefore, this opinion holds little probative value. The July 2009 examiner could not offer an opinion without resorting to speculation. As noted earlier, this is neither positive nor negative support for service connection. See Fagan, supra. The June 2010 examiner initially concluded that the appellant had asbestosis related to service. However, after the periods of the appellant's service were clarified, the examiner was unable to offer an opinion without resorting to speculation. Ultimately, after a B-reader interpretation of the appellant's CT scan was made available, the examiner concluded that the appellant did not have lung disease attributable to asbestos exposure. The Board finds this opinion to be the most probative, as it was based on a review of the claims file, a history provided by the appellant, and a physical examination which included findings from a B-reader. For these reasons, the competent medical evidence does not support service connection for a respiratory disorder. As before, the Board has considered the appellant's own statements made in support of his claim. However, he has not demonstrated the necessary expertise or medical knowledge to diagnose specific pulmonary conditions or establish such an etiological nexus between his current condition and asbestos exposure in service. See Espiritu, supra. Therefore, service connection for a respiratory disorder is not warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a respiratory disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs