Citation Nr: 1306767 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-29 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for chronic bilateral ear infections, to include Eustachian tube dysfunction. 4. Entitlement to service connection for a lung disorder, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran, who is the appellant in this case, served on active duty from October 1954 to May 1958. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board remanded the case in January 2012. The January 2012 Board remand directed additional development regarding the issues on appeal that included providing notice to the Veteran with regard to a substantiating a claim for a lung disorder, to include as due to asbestos exposure; requesting the Veteran identify any post-service treatment reports pertinent to his claims; requesting outstanding service treatment records, Social Security Administration (SSA) records, and VA treatment records; and providing a VA examination to address the claimed lung disorder. This was accomplished, and the Board concludes that it may proceed with a decision on the issues of service connection bilateral ear infections and a lung disorder at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that an additional remand is necessary prior to review of the Veteran's appeal for service connection for bilateral hearing loss and tinnitus. The issues of entitlement to service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not experience chronic symptoms related to bilateral ear infections or Eustachian tube dysfunction in service. 2. The Veteran did not experience continuous symptoms related to bilateral ear infections or Eustachian tube dysfunction since service separation. 3. Currently diagnosed bilateral ear infections and Eustachian tube dysfunction are not related to service. 4. The Veteran was not exposed to asbestos in service. 5. The Veteran did not experience chronic symptoms related to a lung disorder in service. 6. The Veteran did not experience continuous symptoms related to a lung disorder since service separation. 7. A lung disorder, currently diagnosed as chronic obstructive pulmonary disease (COPD) is not related to service, nor is it related to alleged asbestos exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral ear infections, to include Eustachian tube dysfunction, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a lung disorder, to include as due to asbestos exposure, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. In July 2007 and July 2008 letters, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. These letters included provisions for disability ratings and for the effective date of the claim. Pursuant to a January 2012 Board remand order, the RO issued additional VCAA notice addressing the claim for service connection for a lung disorder based on asbestos exposure. In February 2012, the claims were readjudicated in a supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, VA examinations, and the Veteran's statements. Pursuant to the January 2012 Board remand order, the RO requested that the Veteran identify any post-service private treatment reports pertinent to his claims in a December 2012 letter. To date, the Veteran has not identified any additional medical evidence to be obtained in support of his claim. See 38 C.F.R. § 3.655; see also Olson v. Principi, 3 Vet. App. 480, 483 (1992) (holding that the duty to assist is not always a one-way street, or a blind alley, and that the veteran must be prepared to cooperate with the VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting his claim.) The RO has associated VA treatment records dated from 2007 to 2012 with the record. The RO also made an additional request for any outstanding service treatment records and SSA records; however, a March 2012 response from the National Personnel Records Center (NPRC) shows that no additional service treatment records for the Veteran were located, and a February 2012 response from the SSA shows that the Veteran's SSA medical records have been destroyed. The record includes the May 2012 memorandum of the RO indicating effort to obtain additional service treatment records and indicting the unavailability of records. Therefore, the Board finds that all available service treatment records are associated with the claims file and SSA records do not exist and further efforts to obtain those records would be futile. In light of the foregoing, the Board finds that the RO substantially complied with the terms of the January 2012 remand order. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded VA examinations to address the claim for service connection for chronic bilateral ear infections in June 2008 and August 2008, and he was afforded an examination to address his claimed lung disorder in February 2012. 38 C.F.R. § 3.159(c)(4) (2012). 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 VA examinations obtained are adequate and included all indicated tests and studies. The Board finds that the opinions provided are adequate as it they were predicated on a review of the claims file to include relevant findings from available service treatment records and post-service treatment records, considered the Veteran's lay statements, and the VA examiners provided adequate rational for the opinions rendered. With respect to the Veteran's bilateral ear infections with Eustachian tube dysfunction, a June 2008 audiologist did not provide an opinion, but instead referred the Veteran for an ear, nose, and throat (ENT) examination which was completed in August 2008. While the August 2008 VA examiner stated that he could not provide an opinion as to whether the Eustachian tube dysfunction was related to service without resorting to mere speculation, he provided reasoning for his inability to provide an opinion based on conflicting evidence noted in the examination report. Thus, the Board finds that the VA examination is adequate as it was based on an adequate factual premise and included reasoning for the examiner's opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because no additional evidence pertaining to the claimed ear disability was identified or submitted by the Veteran, the Board finds that an remand for an additional opinion is not necessary, as any new opinion necessarily would be based on the same factual premise already considered by the August 2008 VA examiner. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Additionally, the Board finds that the December 2012 VA lung examination substantially complied with the Board's January 2012 remand order. For these reasons, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis Chronic Ear Infections After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence does not establish that bilateral ear infections and Eustachian tube dysfunction are related to service or to in-service noise exposure. Service treatment records contain no complaints, diagnoses, or treatment related to the ears. On both a December 1956 discharge and reenlistment examination and on a May 1958 discharge examination, the Veteran denied having any ear, nose, or throat trouble and denied having running ears. A physical examination of the ears was normal on both the December 1956 and May 1958 examinations. The earliest medical evidence of a chronic bilateral ear disability of record was dated in 1996, 38 years after service separation. During an August 1996 VA general medical examination, the Veteran was noted to have chronic middle ear infections over a number of years and he had a drain tube in the right ear drum. He had been using hearing aids for the last eight years. The Veteran contends, in conjunction with his March 2007 claim, that he has had chronic ear problems since leaving service, continuing since the present time. In a January 2007 VA outpatient treatment record, the Veteran reported chronic ear problems throughout his adult life since service, which included several myringotomy procedures and treatment for ear infections. A February 2007 VA follow-up report noted that the Veteran had a history of multiple sets of ear tubes which started with problems with his Eustachian tubes during service. He reported that the last set of tubes was placed about three years earlier by a private ear, nose and throat physician. In an undated VA outpatient record printed in July 2007, otitis media was included in the Veteran's active problem list. The Board finds that the Veteran did not experience chronic symptoms related to bilateral ear infections in service, or continuous symptoms since service separation. While the Veteran has reported having chronic symptoms related to bilateral ear infections in service and continuing since service separation, physical examinations and reports of medical history, associated with a December 1956 reenlistment examination and a May 1958 discharge examination show that the Veteran denied having any problems relating to the ears, and he was not found to have any problems on examination of the ears. The Board finds it unlikely that the Veteran would deny having any chronic problems relating to chronic ear infections had such problems existed at that time. The Board finds that the objective findings provided by the Veteran's service records and his contemporaneous denial of having any ear problems in service outweigh his more recent statements provided in support of his claim and provided during the course of more recent VA treatment dating from 2007 to present. While an earlier 1996 VA examination does note a history of chronic ear infections, the Veteran did not provide a clear timeline for his history of ear infections, noting only that it had been present for a number of years. Given that the Veteran was separated in service in 1958, several decades earlier, the Board finds that this notation does not establish that chronic of symptoms existed since service separation. The Veteran reported during a June 2008 VA examination, that he had about ten myringotomies since the 1960s; however, when the Veteran was asked to identify this post-service treatment pursuant to a June 2012 Board remand, no response was received, and to date the Veteran has not provided or identified relevant private treatment records pertaining to the claimed ear disability. In weighing the Veteran's statements of continuity of symptomatology made in conjunction with the current claim for VA compensation against the other evidence of record, including the lack of continuity of symptomatology in the record from 1958 to 1996, the Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for 38 years is one factor, along with other evidence discussed above, that the Board has considered in finding that the Veteran's recent statements are less probative than the other evidence of record on the question of continuity of symptomatology after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board finds that the Veteran has not provided credible lay evidence in this case and the Board finds that the weight of the evidence demonstrates that the Veteran did not have chronic symptoms related to the bilateral ears in service or continuous symptoms since service separation. VA treatment records show that the Veteran receives current treatment for his Eustachian tube dysfunction and for ear infections. On VA examination in June 2008, the Veteran reported that he made short field landings in aircrafts during the Korean War, which came down so quickly that his ears would bleed, ring, and cause hearing loss. The examiner identified the Veteran's reported incidents of Eustachian tube dysfunction during landings, multiple myringotomies, pressure equalization (PE) tube placement, and report of having a long standing middle ear disorder since the 1960s; however, the examiner did not provide an opinion with respect to the etiology stating that the Veteran should be seen for an ear disease examination. The Veteran was afforded an ENT examination in August 2008. The VA examiner reviewed the record and noted the Veteran's reported history of Eustachian dysfunction in service, and history of requiring multiple tubes placed and recurrent ear infections. Findings from the June 2008 VA examination were noted, to include that a PE tube on the right side and a perforation visualized on the left side. The VA examiner reviewed service treatment records, stating that there was nothing in the discharge questionnaire to indicate that he had any problems with his ears. Based on information from the claims file indicating that the Veteran did not show any ear, nose, and throat trouble, or problems with running ears at separation, the examiner opined that this would indicate that the Veteran had no ear, nose and throat trouble at that time. The examiner noted that audiogram results at separation were incomplete, which did not support or dispute the fact that the Veteran had any hearing loss when he left service. Further, based on service records, the examiner stated that there was no indication that the Veteran was taking many flights. The examiner concluded that "[w]ithout resorting to mere speculation, [he] [could] not say for sure, based on the conflicting information presented . . . whether or not the [Veteran's] Eustachian tube dysfunction relates to any problems in the military." The Board finds that the VA examiner's conclusion was based on an accurate factual background consistent with the Board's own findings in this case. The Board has noted the absence of ear complaints in service treatment records and finds that the Veteran did not provide credible evidence of chronic ear symptoms in service. Service personnel records, which include a detailed military history provided in March 1958 Special Court Martial proceedings, show that shortly after the Veteran's arrival in Korea, he was taken from his duties as an aircraft mechanic and was transferred into Transient Alert with duties that involved refueling and parking aircraft, and recovering landing chutes. Service personnel records do not show that the Veteran's duties involved frequent flights, and the Board finds that this was accurately noted by the August 2008 VA examiner. The Veteran has not provided credible evidence showing that he experienced chronic ear symptoms in service and continuous ear symptoms since service separation, and an August 2008 VA examiner concluded that he could not relate the Veteran's Eustachian tube dysfunction to service without resorting to mere speculation. VA regulation provides that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Accordingly, the Board finds that the record does not contain sufficient evidence of a nexus or relationship between a currently diagnosed Eustachian tube dysfunction with bilateral ear infections and service. For these reasons, the Board finds that service connection for bilateral ear infections, to include Eustachian tube dysfunction, is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. Service Connection Analysis a Lung Disorder After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence does not establish that a lung disorder, currently diagnosed as COPD, is related to service or to alleged asbestos exposure in service. A diagnosis of COPD with chronic bronchitis was noted during an August 1996 VA general medical examination and VA treatment records and a February 2012 VA examination establish a current diagnosis of COPD. The Veteran asserts that his lung disability is etiologically related to his duties on the flight line in service, and more recently identified an appeal for a lung disorder due to asbestos exposure. In a March 2007 personal statement, the Veteran asserted that he had no lung protection during his military service when involved with duties on the flight line and reconnaissance assignments while stationed in Korea, as well as when involved with gathering drag chutes from large jet aircraft while stationed at the Barksdale Air Force Base (AFB). He also reported having lung problems since leaving service that continued through the present time. In a July 2010 substantive appeal, the Veteran identified his appeal as service connection for a lung disorder due to asbestos exposure, though no specific incidents of exposure were identified by the Veteran during the course of the appeal. There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, asbestos-related diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VBA's ADJUDICATION PROCEDURE MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. (hereinafter M 21-1MR). In addition, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M 21-1MR. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. The Manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. This is significant considering that, during World War II, several million people were employed in shipyards and U.S. Navy Veterans were exposed to asbestos since it was used extensively in military ship construction. Many of these people have only recently come in for medical attention because the latency period varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief, (as little as a month or two) or indirect (bystander's disease). The Manual goes on to say that the clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. It should be noted that the pertinent parts of the Manual guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in-service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. The Veteran served in the Air Force from October 1954 to May 1958. To date, the Veteran has not identified any specific incidents of asbestos exposure in service, nor were his duties in service, as an aircraft mechanic, or with refueling and parking aircraft shown to involve asbestos exposure. See M 21-1MR. In a recent February 2012 VA examination, the Veteran denied having any asbestos exposure in service. Moreover, the Veteran has been diagnosed with COPD, and not the type of lung pathology typically associated with asbestos exposure such as "restrictive disease," "pleural plaques," or "asbestosis." A February 2012 VA examination shows that there was no x-ray evidence of asbestosis. Because the Veteran's duties and MOS are not typically associated with asbestos exposure, because he has denied any specific incidents of exposure to asbestos in service, and because he does not have a current lung disability typically associated with asbestos exposure, the Board finds that the Veteran was not exposed to asbestos in service. The Board finds that the Veteran did not experience chronic symptoms related to a lung disorder in service and did not experience continuous symptoms related to a lung disorder since service separation. Service treatment records contain no complaints, diagnoses, or treatment related to a lung disorder. The Veteran denied having asthma, shortness of breath, pain nor pressure in the chest, and chronic cough on both a December 1956 discharge and reenlistment examination, and on a May 1958 discharge examination. A physical examination of the lungs and chest was normal on both the December 1956 and May 1958 examinations. While the Veteran has asserted, in conjunction with his current claim, that his lung symptoms were continuous since service separation, during an August 1996 VA general medical examination, the Veteran reported having trouble breathing over the past 10 years, though he recalled having some difficulty with shortness of breath while fueling aircraft in service. Thus, the Board finds that while the Veteran noted a history of acute symptoms in service while fueling aircraft, his report does not indicate that symptoms were continuous since service, but instead indicates that his current symptoms have only been present for the last 10 years. Additionally, during the examination, the Veteran reported having a 35-year history of smoking a pack-and-a-half of cigarettes prior to quitting in 1996. The Board finds that the Veteran has not provided credible evidence of having chronic lung symptoms in service. While the Veteran may have credibly reported noticing symptoms of shortness of breath while working on the flight line, the Board finds that such symptoms were not chronic in service. The Board finds it unlikely that the Veteran would specifically deny having problems with shortness of breath on both December 1956 and May 1958 examinations in service had such problems existed at that time. The Board finds that the objective physical findings provided by December 1956 and May 1958 examinations, and the Veteran's denial of having such problems in service outweigh the more recent statements provided in support of his claim. The earliest evidence of record showing a diagnosis of COPD was the August 1996 VA general medical examination. In weighing the Veteran's more recent reports of continuity of symptomatology made in conjunction with his claim for compensation against other evidence of record, including the Veteran's August 1996 statement indicating a 10-year history of lung symptom, and the lack of continuity of symptomatology shown in the record from service until more recently, the Board finds that the Veteran's recent statements are less probative than the other evidence of record on the question of chronicity and continuity of symptomatology. See Buchanan, 451 F.3d at 1336; Maxson, 230 F.3d at 1333. For these reasons, the Board finds that the Veteran has not provided credible lay evidence in this case, and the Board finds that the weight of the evidence demonstrates that the Veteran did not have chronic symptoms related to a lung disorder in service or continuous symptoms since service separation. A February 2012 VA examiner reviewed the record and interviewed the Veteran. The Veteran reported current symptoms of shortness of breath, and reported that he quit smoking in 1989 after being diagnosed with renal cancer. He denied having been exposed to asbestos in service. The Veteran also reported having trouble breathing when exposure to jet fuel fumes in service. The Veteran stared smoking at the age of 18 while in the military, and smoked less than one pack per day. The Veteran started inhalers for COPD in 2002. The February 2012 VA examiner opined, with consideration of the Veteran's reported history and a review of the record, to include June 2011 chest x-rays, that COPD was less likely than not incurred in service, or caused by a claimed in-service injury, event, or illness. The examiner reasoned that the Veteran had no x-ray evidence of asbestosis, and he denied any asbestos exposure in service. The Board finds that the VA examiner provided an adequate rational for the opinion rendered, and that the opinion was based on an accurate factual premise, and is thus, probative. The February 2012 VA opinion provides competent, credible, and probative evidence, showing that the Veteran's COPD is not related to service or any in-service exposures to jet fuel fumes or alleged asbestos exposure. Accordingly, the Board finds that competent, credible, and probative evidence of record shows that the Veteran's COPD is not etiologically related to service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for chronic bilateral ear infections is denied. Service connection for a lung disorder, to include as due to asbestos exposure, is denied. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). The Veteran has reported noise exposure in service while working on the flight line. The Veteran reported working in the Alert Crew with servicing, parking, and maintenance of aircraft. The Veteran's DD Form 214 shows that he served as an aircraft mechanic, and that he had active service October 1954 to May 1958; however, documents associated with personnel records show that the Veteran was transferred into Transient Alert in August 1955, with duties that involved refueling and parking aircraft, and recovering landing chutes. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS of aircraft mechanic, and veterans with duties in refueling aircraft both have a high probability of exposure to hazardous noise. A June 2008 VA examiner noted the Veteran's reported military noise exposure, to include exposure to engine noise, artillery, refueled aircrafts, reconnaissance missions, drag shoots, and basic maintenance noise; however, the VA examiner did not provide an opinion with regard to whether the Veteran's hearing loss or tinnitus was related to in-service noise exposure. Both the June 2008 VA audiological examination and a later August 2008 ENT examination focused, instead, on whether hearing loss and tinnitus were related to the Veteran's reported history of Eustachian tube dysfunction during flight landings in service. The Board finds, therefore, that a supplemental opinion is necessary to assist the Board in determining whether current bilateral hearing loss and/or tinnitus are related to exposure to hazardous noise in service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should refer the case to the VA examiner who conducted the June 2008 audiological examination (or a suitable substitute) for a supplemental opinion. The record must be made available to the examiner along with a copy of this remand. The examiner should review the record, to include statements provided by the Veteran. The examiner should render an opinion, based on all available evidence, as to whether it is at least as likely as not that the Veteran's bilateral hearing loss and/or tinnitus was incurred in service. The Board notes that the Veteran's duties as an aircraft mechanic and his duties in refueling aircraft are associated with a high probability of exposure to hazardous noise. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a clear rationale for his or her opinion with references to the evidence of record, to include lay evidence provided by the Veteran, and must provide a discussion of the facts and medical principles involved. 2. When the development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefit sought is not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs