Citation Nr: 1231330 Decision Date: 09/12/12 Archive Date: 09/19/12 DOCKET NO. 12-03 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to service connection for a lung disorder, to include as secondary to asbestos exposure in service. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement tot service connection for hepatitis C. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant 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 Veteran served on active duty from February 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In June 2011, the RO denied service connection for diabetes mellitus and hepatitis C. In September 2011, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating effective June 30, 2011. The RO also denied service connection for chronic obstructive pulmonary disease (COPD). A Travel Board hearing was held in May 2012 with the Veteran in St. Petersburg, Florida, 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. Recent VA treatment records pertinent to the Veteran's claim for a lung disorder recently were associated with the claims file. It does not appear that these records were reviewed by the RO when the December 2011 statement of the case was promulgated. However, as service connection for a lung disorder is being granted, 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, or unless the Board determines that the benefit to which the evidence relates may be fully allowed on appeal without such referral). FINDINGS OF FACT 1. The medical evidence of record indicates that the Veteran manifests Level I hearing in the right ear and Level I hearing in the left ear. 2. Asbestosis is etiologically related to asbestos exposure in service. 3. In May 2012, prior to promulgation of a decision in the appeal, the Veteran indicated through written communication that he would like to withdraw his claim for service connection for diabetes mellitus. 4. In May 2012, prior to promulgation of a decision in the appeal, the Veteran indicated through written communication that he would like to withdraw his claim for service connection for hepatitis C. CONCLUSIONS OF LAW 1. The criteria for compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85 Diagnostic Code 6100 (2011). 2. The criteria for service connection for asbestosis have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). 3. The criteria for withdrawal of a substantive appeal for the issue of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2011). 4. The criteria for withdrawal of a substantive appeal for the issue of entitlement to service connection for hepatitis C have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify 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). With respect to the Veteran's claim for a respiratory disorder, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Board also notes that the Veteran did not specifically file a claim for service connection for hearing loss. Instead, the RO inferred such a claim based on the Veteran's separate claim for service connection for tinnitus and VA treatment records which showed treatment for hearing loss. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, in the Veteran's October 2011 notice of disagreement (NOD), he took issue with the initial disability rating assigned and is presumed to be seeking the maximum benefits available under the law for each appealed issue. Dingess; see also AB v. Brown. Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a December 2011 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). B. Duty to Assist The Veteran's service treatment records, VA treatment records, VA authorized examination reports, lay statements, and hearing transcript have been associated with the claims file. The Veteran testified that he was receiving Social Security Administration (SSA) disability benefits. However, those benefits were for his bilateral knee conditions, and therefore those records are not pertinent to the claims on appeal. The Board specifically notes that the Veteran was afforded a VA examination with respect to his hearing loss disability. 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 examination obtained in this case is adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and records the relevant findings for rating the Veteran's bilateral hearing loss. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the appellant with the opportunity to submit evidence and arguments in support of his claims. The appellant and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced as a result of the Board's adjudication of his claims. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2011). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC), and the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000-Hertz. The rating schedule establishes 11 auditory acuity Levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and puretone audiometric test. Examinations will be conducted without the use of hearing aids. See 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment, based upon a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000-Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII (Percentage Evaluations for Hearing Impairment, also referred to as Diagnostic Code 6100) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000-Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86 (a). The provisions of 38 C.F.R. § 4.86 (b) further provide that, when the puretone threshold is 30 decibels or less at 1000-Hertz, and 70 decibels or more at 2000-Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Each ear will be evaluated separately. B. Evidence The Veteran underwent a VA examination in September 2011. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 60 65 LEFT 30 40 40 65 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Puretone threshold average for the right ear was 53 decibels [40+45+60+65=210, 210/4=52.5~53]. Utilizing Table VI for the right ear results in a hearing level of I. Puretone threshold average for the left ear was 59 decibels [40+40+65+65=210, 210/4=52.5~53]. Utilizing Table VI for the left ear results in a hearing level of I. The Veteran stated that hearing loss did not impact ordinary conditions of daily life, including the ability to work. However, he stated that people were frequently frustrated with him because he could not hear. The Veteran testified at a May 2012 Board hearing. With respect to current symptoms, the Veteran reported that he had problems understanding people who spoke softly. He stated that his hearing aids provided too much amplification at times. He was able to watch television with his hearing aids, and be around a group of people and hear everyone equally. He had difficulty discriminating between certain words. C. Analysis Based on the evidence of record, the Board finds that an initial compensable rating is not warranted for the Veteran's bilateral hearing loss. During the period on appeal, hearing levels were I in the right ear and I in the left ear. A comparison between these findings and 38 C.F.R. § 4.85, Table VII indicates that the assigned 0 percent disability rating is appropriate. The Board notes that in adjudicating a claim 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 acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as difficulty hearing and communicating. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, as with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings. His difficulties with discriminating or misinterpreting certain words, or understanding soft-spoken people, do not reflect an overall level of impairment consistent with a compensable rating. D. Extraschedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. Hearing loss is rated primarily on objective puretone thresholds and speech recognition scores. The Veteran has not demonstrated that his hearing disability results in symptomatology or impairment not contemplated by the rating schedule. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Indeed, it does not appear from the record that he has been hospitalized at all for hearing loss. There is no persuasive evidence in the record to indicate that this service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disabilities have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. Service Connection A. Applicable Law 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. § 1110 (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). 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). The Veteran has alleged that he has a respiratory disorder as a result of in-service asbestos exposure. 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. 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 Initially, the Board notes that in a May 2012 statement, the Veteran declared that he was not seeking service connection for COPD. Therefore, evidence specifically pertaining to COPD will not be addressed. Service treatment records do not reflect any complaints, treatment, or diagnoses pertaining to a lung disability. The Veteran underwent examinations in February 1965 and January 1967. No relevant abnormalities were noted. However, service personnel records show the Veteran served as a machinist's mate during service, which included duty aboard the U.S.S. Forrestal. The claims file contains an informational document on asbestos exposure in the U.S. Navy. Of note, the document lists machinist's among those positions with possible exposure to asbestos. Boilers, pipe coverings, and insulation were listed as products containing asbestos. The U.S.S. Forrestal was also listed among the ships known to contain asbestos. A February 2007 chest x-ray showed COPD with increased fibrotic changes when compared to a 2001 x-ray. VA treatment records dated March 2007 reflect scattered wheezing and a few rhonchi in the Veteran's lungs. A July 2011 x-ray demonstrated evidence of pulmonary fibrosis. Pulmonary function tests and a CT scan reflected findings consistent with peripheral and bibasilar pulmonary fibrosis. Additional records also noted a smoking history of 1.5 packs per day for 50 years, down to 1 or 2 cigarettes per day. The Veteran was afforded a VA examination in September 2011. He reported having shortness of breath and dyspnea on exertion which began in March 2011 and had progressively worsened. He also noted some non-anginal chest pain. He had previously had a chronic cough but noted that the cough was less frequent. He treated his condition with a bronchodilator. The Veteran also reported that he worked as an electrician until 2006. On examination, there were crackles in both the right and left lungs. Based on a review of the claims file, a history provided by the Veteran, and an examination, the examiner diagnosed COPD and idiopathic pulmonary fibrosis. However, the examiner stated that COPD was most likely due to tobacco abuse. The cause of idiopathic pulmonary fibrosis was unknown and there was a broad range of etiologies. The Veteran had risk factors of smoking and drug use, along with a history of exposure to environmental pollutants. His high-resolution computed tomography was not consistent with findings seen with asbestosis. VA treatment records dated October 2011 show the Veteran's treating physician acknowledged a history of asbestos exposure during service from work as a boiler technician. The Veteran had pulmonary fibrosis based on previous radiographs and high-resolution computed tomography. Physical findings confirmed bilateral pulmonary rales. The physician stated that the constellation of dyspnea on exertion, physical examination, radiographic appearance of fibrosis, and restrictive pulmonary function tests, along with the Veteran's known asbestos exposure and proper latency period, was consistent with asbestosis. VA treatment records dated April 2012 reflect a history of asbestosis. The Veteran testified at a Travel Board hearing in May 2012. His duties in service included work on the ship's boilers. The boilers and pipes were coated in asbestos. As a boiler technician, he typically worked 8 hour shifts. As a boiler repairman, he worked up to 16 hours a day. After service, he worked as an electrician, but denied any asbestos exposure. His breathing problems surfaced about a year ago, and included coughing and shortness of breath. He was told by his VA doctor that he had fibrosis since 2007. The Veteran acknowledged a history of smoking since he was 10 years old, but stated that his doctor knew this but nevertheless concluded that his problem was not related to smoking. C. Analysis Based on the evidence of record, the Board finds that service connection for asbestosis is warranted. First, the Board notes that the Veteran served as a machinist's mate on board the U.S.S. Forrestal during service. The duties and circumstances associated with his service make it likely that he was exposed to asbestos, and the RO has already conceded asbestos exposure during service. The Board, too, concedes asbestos exposure based on the Veteran's verified duties aboard ship. There are two opinions which address the nature and etiology of the Veteran's current condition. 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. Here, the September 2011 VA examiner stated that the cause of the Veteran's idiopathic pulmonary fibrosis was unknown, and that there was a broad range of possible etiologies. The Veteran had risk factors of smoking and drug use, along with a history of exposure to environmental pollutants. His high-resolution computed tomography was not consistent with findings seen with asbestosis. Therefore, his condition was not related to service. In contrast, the Veteran's VA physician stated in October 2011 that the Veteran had pulmonary fibrosis based on previous radiographs and high-resolution computed tomography. Physical findings confirmed bilateral pulmonary rales. The physician stated that the constellation of dyspnea on exertion, physical examination, radiographic appearance of fibrosis, and restrictive pulmonary function tests, along with the Veteran's known asbestos exposure and proper latency period, was consistent with asbestosis. The VA examiner in this case was a physician's assistant who examined the Veteran only for the duration of the examination. In contrast, the Veteran's VA physician is a doctor in the Respiratory Diseases department who treated the Veteran over an extended period. Therefore, her opinion that the Veteran does have asbestosis is of greater probative value. Having established the diagnosis, the Board also finds that her opinion regarding the etiology of the Veteran's asbestosis is also sound. As noted earlier, M21-1 guidelines provide that the clinical diagnosis of asbestosis requires, among other things, a history of exposure, radiographic evidence of parenchymal disease, and a determination as to whether there is a relationship between asbestos exposure and the claimed disease with consideration of the latency period and exposure information. In this case, the Veteran has a history of asbestos exposure. X-rays and CT scans showed radiographic evidence of pulmonary fibrosis, and the Veteran's VA doctor considered the Veteran's exposure history and latency period in making her opinion. Moreover, VA treatment records demonstrate that she was aware of the Veteran's smoking history when she formed her diagnosis and opinion. Therefore, as the evidence establishes current asbestosis etiologically related to asbestos exposure in service, service connection for asbestosis is warranted. Withdrawal of Claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, prior to the promulgation of a decision in the appeal, the submitted a May 2012 letter indicating that he wished to withdraw his claims for service connection for diabetes mellitus and hepatitis C. Therefore, there remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the appeal for those issues, and they are dismissed. ORDER An initial compensable rating for bilateral hearing loss is denied. Service connection for asbestosis is granted, subject to the laws and regulations governing the award of monetary benefits. The appeal regarding the Veteran's claim for entitlement to service connection for diabetes mellitus is dismissed. The appeal regarding the Veteran's claim for entitlement to service connection for hepatitis C is dismissed. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs