Citation Nr: 1338595 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-25 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lung disorder, to include asbestosis. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge via a videoconference hearing in November 2010, and a transcript from such hearing has been associated with the claims file. In December 2010 and May 2012, the Board remanded the claims for additional development. The requested development having been adequately completed, the matter again is before the Board. The Board has not only reviewed the Veteran's physical claims file, but also his files included in the Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a lung disorder, to include asbestosis, that is etiologically related to a disease, injury, or event in service, to include asbestos exposure. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral hearing loss disability that is etiologically related to a disease, injury, or event in service. 3. The preponderance of the evidence is against finding that the Veteran has a tinnitus disability that is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. A lung disorder, to include asbestosis, was not incurred in service and is not otherwise related to military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 2. A bilateral hearing loss disability was not incurred in service, is not otherwise related to military service, and may not be presumed to have occurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 3. A tinnitus disability was not incurred in service and is not otherwise related to military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in June 2007 and January 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. As a result of the information elicited during the hearing, the Board remanded the claim in December 2010 for additional development. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file, to the extent available. In that regard, the Veteran claimed treatment during service at the Balboa Naval Hospital for lung problems, but such records have been determined to be unavailable, despite multiple efforts to obtain the information. That said, the Veteran's service treatment records do include hospitalization records for tonsillitis and it is somewhat unclear as to whether that is the hospitalization now claimed by the Veteran to also involve his lungs. In any case, no additional records are available. The Board also notes that the May 2012 Board remand was premised on the failure to request federal records from the Veteran's period of employment with the USAF Aeronautical Chart and Information Center. Following the May 2012 remand, multiple attempts to obtain these records were undertaken by the AMC, but no response was received by VA. Typically, requests for federal records must continue until a negative response is received by VA; however, in a statement received in January 2013 the Veteran stated that he had contacted his former employment agency and they indicated that they had never required a pre-employment audiogram or physical examination. The Veteran, therefore, proffered that if had he ever made such a statement about receiving audiological testing at the time of entrance into that job, then he must have been mistaken. The Board notes that the entire basis for requesting the Veteran's employment records from this source was his contentions that he received an audiogram prior to starting the job. As the Veteran now concedes that such testing was not undertaken, the Board concludes that there is no further need or basis for obtaining these employment records and that failure to receive a negative response from the agency as to the existence of the records is in no way prejudicial to the Veteran. See id. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Veteran was provided VA examinations in August 2007 (audio), October 2007 (lungs), and August 2011 (both). In the case of both audio examination reports, the examiner indicated that the Veteran's responses to audiometric testing were inconsistent and of poor reliability and could not provide a basis for an opinion as to the etiology of his claimed hearing loss and tinnitus. In a February 2012 addendum, the examiner reiterated her conclusions. As to the Veteran's lung problems, in both the October 2007 and August 2011 VA examination reports the examiner concluded that the Veteran did not have asbestosis or other lung disorder. In a February 2012 addendum, the examiner reiterated his opinion. Finally, in a June 2012 medical opinion, another VA health professional concluded that there was no evidence of any lung disorder. The above reports took into account the Veteran's reported history, his current symptoms, review of the available private and VA treatment records, and the results of physical examination and audiological or diagnostic testing. Therefore, the Board finds the compilation of examination reports to be thorough and complete and sufficient upon which to base a decision with regards to these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the association of VA treatment records, private treatment records (to the extent possible), the August 2011 VA examination reports, the June 2012 VA medical opinion, January 2011 notice letter, and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its December 2010 and May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). In the instant case, there is no presumed service connection because the Veteran was not diagnosed with a hearing loss disability within one year of service. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lung Disorder Claim The Veteran contends that he has a current lung disability as a result of exposure to asbestos during military service. Specifically, the Veteran asserts that he was exposed to asbestos while working in boiler and engine rooms aboard ship, with duties that included the repair of asbestos-based pipe insulation. In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) observed that there has been no specific statutory guidance with regard to claims for service connection for asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB Circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. [This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.] See also VAOPGCPREC 4-00 (Apr. 13, 2000). The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). VA must ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to exposure in service. Dyment v. West, 13 Vet. App. 141 (1999); Nolen v. West, 12 Vet. App. 347 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and that an asbestos-related disease can develop from brief exposure to asbestos. Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment, 13 Vet. App. at 141; Nolen, 12 Vet. App. at 347; VAOPGCPREC 4-2000. In this case, the Veteran's DD-214 shows an MOS that most closely parallels the duties of an engineer. The Board notes that the Veteran's occupation is not one necessarily associated with asbestos exposure; however, the Board recognizes that it is not inconceivable that the Veteran worked in close proximity to asbestos while present aboard a ship, to include work repairing pipe insulation containing asbestos. As such, for the purpose of this decision alone, exposure to asbestos will be presumed. The Veteran's service treatment records include no complaints, treatment, or diagnosis of a lung disorder, although the records do show numerous problems involving his tonsils. After service, a March 2000 private treatment record from a Dr. H.B. included a history of exposure to asbestos materials since 1953, as well as a 40 year smoking history that ended in 1988. X-rays were noted to be positive (of what is not stated in the record). The prognosis was that due to the latency period between asbestos exposure and onset of disease, the Veteran was at increased risk of developing bronchiogenic carcinoma, mesothelioma, and other cancers, as well as deterioration of pulmonary function. Close clinical follow-up was recommended. A subsequent March 2000 letter from Dr. J.W.B. discussed review of a March 2000 chest x-ray that had only grade 2 film quality, but showed interstitial changes in the mid and lower lung zones bilaterally, consisting of small and irregular opacities of size and shape. Pleural plaques were also seen, but no parenchymal infiltrates, nodules, or masses. The conclusion was that the above parenchymal and pleural changes were consistent with asbestosis provided the Veteran's exposure history and appropriate period of latency. A May 2007 VA treatment record included findings of clear lungs without ronchii and wheezing. The Veteran was afforded a VA examination in October 2007. The Veteran reported exposure to asbestos during service. The examiner indicated that exposure to asbestos was conceded and discussed the March 2000 private records describing the chest x-ray showing interstitial changes, small irregular pacitis, and pleural plaques in both lungs. VA records showed no indication of respiratory or pulmonary disease since initial treatment in May 2007. The Veteran reported a history of cough up to several times per day that was productive and occasionally blood-tinged. There was a reported history of shortness of breath with exertion that occasionally included chest pain. On examination, there were decreased breath sounds and persistent cough. Contemporaneous chest x-rays showed no signs of pleural effusions or pulmonary edema. The lungs were normal in volume and clear. Pulmonary function testing was normal, with normal spirometry. The examiner concluded that there was no evidence of asbestosis or other respiratory or pulmonary condition related to exposure to asbestos during military service. The rationale was the normal contemporaneous chest x-rays and pulmonary function tests. In support of his claim, the Veteran submitted a letter from a shipmate who stated that he remembered a container of powdered asbestos being spilled on the Veteran, after which he was diagnosed with lung congestion and infection in the lungs and throat, for which he was hospitalized for three days. Thereafter, the Veteran returned to the ship, but was sick for some time thereafter, including coughing and weakness. The Veteran was afforded another VA examination in August 2011. The examiner noted review of the claims file. The Veteran reported a lung condition with no known onset other than several years previously with the onset of problems with shortness of breath. Contemporaneous pulmonary function testing was essentially normal. The examiner diagnosed pleural plaques on chest x-ray pursuant to a B reader imaging study, apparently based on the March 2000 chest x-ray discussed above. A more precise diagnosis could not be made because there was no objective data to support a more definitive diagnosis. In addition, the examiner discussed the essentially normal pulmonary function test without current objective evidence of a respiratory disease. There was no current objective evidence of asbestosis or any other respiratory disorder, according to the examiner. The examiner concluded that it would be mere speculation to opine as to whether any of the Veteran's current lung conditions or symptoms (such as pleural plaques) were caused or aggravated by the Veteran's asbestos exposure. Almost immediately thereafter, however, the examiner stated that because the Veteran had no current evidence of asbestosis there was no current evidence that the Veteran's conceded asbestos exposure caused or aggravated any current lung/respiratory conditions or symptoms, including pleural plaques. In a February 2012 opinion, the examiner clarified that there was no current objective evidence for a diagnosis of asbestosis and that a precise diagnosis could not be rendered because there was no objective evidence of pathology. The examiner noted the March 2000 findings of pleural plaques, but stated that such findings were not objective evidence of asbestosis in the absence of abnormal pulmonary function testing that currently were normal. In addition, the examiner discussed that although pleural plaques have been associated with asbestosis, there were multiple other conditions that could also produce pleural plaques and that it was not possible from the available data to determine if any pleural plaque findings were manifestations of asbestosis. That said, there was no objective evidence for asbestosis or that in-service asbestos exposure caused or aggravated the Veteran's current respiratory symptoms. Finally, a June 2012 VA medical opinion noted review of the claims file. The medical professional discussed the evidence of record, including the March 2000 chest x-ray information, but concluded that there was no objective evidence of any current lung disorder. As such, no opinion was rendered as to the etiology of such non-existent disorder. In light of these results, the Board concludes that the medical evidence of record does not show a current diagnosis of asbestosis or any current respiratory disability associated with in-service asbestos exposure, or other incident of service. Moreover, the Board finds that the Veteran does not have a current chronic pneumonia disability or other current chronic respiratory disability. The threshold requirement for service connection to be granted is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim, the competent medical evidence of record does not show the Veteran to currently have asbestosis or any other lung disorder associated with in-service asbestos exposure or other incident of service at any point during the appellate time period. In that regard, the Board notes and as discussed above, that the Veteran has been evaluated for residuals of asbestos exposure and multiple examiners concluded that the Veteran did not have any current respiratory disorder, as evidenced by chest x-ray, pulmonary function testing, and physical examination. Although the March 2000 private treatment records indicated findings such as pleural plaques that were found to be consistent with asbestosis, such findings were based on a less than perfect chest x-ray (grade 2) from a period prior to the appellate time period and are not consistent with the August 2007 chest x-rays that were normal. Moreover, the February 2012 VA examination report addendum clarified that the mere finding of pleural plaques and the other symptoms noted in March 2000 were not alone sufficient to afford a diagnosis of asbestosis, which is consistent with the March 2000 private physician's findings that the Veteran's symptoms were "consistent" with asbestosis, without making a definitive diagnosis. The Veteran still must be diagnosed with a specific disorder attributed to in-service asbestos exposure because a symptom alone, absent a finding of an underlying disorder, cannot be service connected. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The June 2012 VA medical opinion clarified what had been inartfully stated in the prior VA opinions, namely that the Veteran did not have asbestosis or any other diagnosable respiratory disorder. The Board has considered the Veteran's lay assertion that he has a chronic lung disorder as a result of in-service asbestos exposure. Certainly, he is competent to report sensory or observed symptoms such as shortness of breath, coughing, and pain in the chest, and his testimony in that regard is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, diagnosing a lung disorder and linking such a disorder to in-service asbestos exposure clearly falls outside the realm of common knowledge of a lay person. Given the Veteran's lack of demonstrated medical expertise, his statements regarding any such diagnosis or link are much less probative than the findings of the competent VA health care specialists discussed above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). In short, there is no diagnosis of a chronic respiratory or pulmonary disorder attributed to in-service asbestos exposure or other incident of military service. There is no competent medical evidence either diagnosing asbestos or other respiratory disorder associated with asbestos exposure or any competent link between any such diagnosed disorder and military service. In that regard, the Board places much more weight on the opinions of the competent VA health care providers who conducted physical examination and reviewed the results of various diagnostic tests conducted at that time and previously, than on the Veteran's lay assertions that he has a lung disorder related to asbestos exposure in service. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim for service connection. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing Loss and Tinnitus Claims With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Veteran alleges that he has current bilateral hearing loss and tinnitus due to in-service noise exposure. Specifically, the Veteran asserts that he had significant noise exposure during his work in boiler and engine rooms aboard multiple naval vessels without hearing protection. The Veteran also reports exposure from the firing of weapons such as the M1 rifle. Given that the Veteran's DD-214 indicates that his MOS was the equivalent of an engineer and his personnel records document service aboard the U.S.S. Weiss and U.S.S. George Clymer, for the purpose of this decision alone exposure to significant acoustic trauma will be presumed. The Veteran's service treatment records, however, are silent as to any complaints, treatment or diagnoses of hearing loss or tinnitus, although the Board acknowledges that audiometric testing was not performed during his entrance and separation examinations. Instead, the Veteran was shown as scoring 15 out of 15 in whispered voice testing. The Veteran does not claim that he sought treatment for hearing problems in service. After service, the Veteran's treatment records do not indicate a diagnosis of bilateral hearing loss or tinnitus for over 30 years after service. Initially, when the Veteran did report issues he attributed any observed hearing problems to his post-service employment, as evidenced by a February 1991 letter documenting a claim for workers' compensation benefits due to hearing loss. In addition, the Veteran filed a claim for entitlement to service connection for hearing loss and tinnitus in April 2007. At that time, the Veteran asserted that his hearing loss and tinnitus disabilities began in 1985. In a June 2008 VA treatment record, the Veteran reported gradual hearing loss usually present for several years. The Veteran was afforded a VA examination in October 2007. The examiner noted review of the claims file. At that time, the Veteran asserted that he had experienced gradual bilateral hearing loss for at least 20 years and tinnitus for about 20 years. The examiner noted the in-service whispered voice tests that were inadequate for rating purposes. The Veteran reported in-service noise exposure from big guns and work in ships' boiler and engine rooms. After service, he had worked around occasional noise as an air conditioning mechanic, where he always used ear protection in noisy areas. Following audiometric testing, the examiner concluded that the reliability of the testing was poor and that speech reception thresholds were not in agreement with pure tone averages, despite repeated instruction. The Veteran did not appear to be putting forth a good faith effort to cooperate with the examiner. Based on the foregoing, the examiner concluded that an opinion as to etiology could not be reached without resort to speculation. July 2008 and August 2008 audiograms showed a bilateral hearing loss disability for VA purposes. Thereafter, the Veteran received hearing aids. In support of his claim, the Veteran submitted a statement from a shipmate who indicated that he had worked with the Veteran near high pressure boilers at very high noise levels without hearing protection and that they also fired M1 rifles without hearing protection. The Veteran also complained to the fellow service member years later about still hearing the noise from the ship, in his ears. The Veteran was afforded another VA examination in August 2011. Again, the examiner concluded that the Veteran's test results were not reliable, as the pure tone thresholds were not in good agreement with speech reception thresholds. The examiner noted review of the claims file, but was unable to provide an opinion as to etiology without resort to speculation due to the poor reliability of the testing results. The examiner reiterated her opinion in a February 2012 addendum opinion. Having reviewed the record, the Board concludes that the preponderance of the evidence is against the Veteran's claims for entitlement to service connection for hearing loss and tinnitus. Initially, the Board notes that the Veteran has current diagnoses of bilateral hearing loss disability as defined under 38 C.F.R. § 3.385, as well as a tinnitus disability. In that regard, although the Board acknowledges that the Veteran was unable to provide reliable testing results during his VA examinations, other audiograms have shown a bilateral hearing loss disability for VA purposes. As to the etiology of that hearing loss and tinnitus, the Board notes that the Veteran's statements during his November 2010 Board hearing regarding his decreased hearing acuity, tinnitus, and subsequent continuous symptoms were considered. Credibility, however, is an adjudicative and not a medical determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's statements as to the onset of his decreased hearing acuity and tinnitus are inconsistent with statements made prior to and shortly after filing his claim for VA compensation benefits. In that regard, the February 1991 letter (discussed above) involving the Veteran's claim for workers' compensation benefits for hearing loss clearly indicates that at that time the Veteran attributed his hearing problems to his post-service employment. The Board finds this particularly significant in light of the Veteran's numerous denials of significant post-service occupational noise exposure made after filing his claim for VA compensation benefits. The Board's interpretation of the significance of the February 1991 letter is further supported by the Veteran's assertions in his April 2007 claim for VA compensation benefits that his hearing loss and tinnitus disabilities had their onset in 1985. In addition, during the August 2007 VA examination the Veteran reported onset of his tinnitus about 20 years previously and his hearing loss at least 20 years prior. The Board has also considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, this is not a case in which the record is merely silent regarding whether the Veteran experienced a continuity of hearing problems and tinnitus from service. Instead, there are multiple statements by the Veteran where he asserts that his hearing problems and tinnitus began in approximately 1985, or multiple decades after his military service. These statements directly contradict the Veteran's assertions during the November 2010 Board hearing and otherwise that his tinnitus and hearing problems began during his military service and have continued to the present. Regardless of whether the Veteran is purposely mischaracterizing the events in service and thereafter or unintentionally doing so, the ultimate conclusion is that his current statements regarding a continuity of symptomatology since service are simply not credible evidence. As discussed above, there are objective documents and the Veteran's own statements that refute his claim of experiencing ongoing hearing problems and tinnitus from service. It was only after the importance of a continuity of symptomatology was made known to the Veteran that he began to claim continuous symptoms from service. Because of the inconsistency, the Board finds that any current allegations of a continuity of symptoms have no probative value. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain). The Board also has considered the statement submitted by the Veteran's shipmate; however, any assertion of continuity of symptoms was made to the shipmate "years later" and, as discussed, the Board does not find the Veteran's statements of continuity credible in light of the multiple prior denials of such continuity. The only medical opinion as to the etiology of the Veteran's hearing loss and tinnitus are the August 2007 and August 2011 VA examination reports. In each case, however, the examiner was unable to offer an opinion as to the etiology of any diagnosed hearing loss or tinnitus disability because the Veteran did not put forth good effort and the examination results were not reliable. Due to this unreliability in the testing results, the examiner indicated on both occasions that she was unable to reach a conclusion as to etiology without resort to speculation. The Court has previously held that an "examiner's conclusion that a[n] ... etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a ... conclusive opinion." Jones v. Shinseki, 23 Vet. App. 382 (2010). Recognition was given in Jones to instances in which a definitive nexus opinion cannot be provided because required information is missing or can no longer be obtained or because current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The Court stated that VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile." However, it was made clear that an examiner cannot invoke "the phrase 'without resort to mere speculation' as a substitute for the full consideration of" the evidence. The Court, therefore, held that the examiner's conclusion that an etiology opinion cannot be provided without resort to mere speculation must be made after consideration of "all procurable and assembled data." Additionally, the Court held that the basis for such a conclusion must be provided or otherwise be apparent from a review of the record. The August 2007 and August 2011 VA audiological examinations here were adequate, as noted above, even though the etiology opinion rendered was inconclusive. To reiterate, they included a review of the claims file containing service treatment records as well as post-service private treatment records and numerous statements from the Veteran, interview and physical assessment of him, and performance of relevant diagnostic testing on him. Full consideration therefore was given by the examiner to all the pertinent evidence. After providing her inconclusive etiology opinions, the examiner pointed out that reliable and valid hearing tests dated during service were missing and that current testing results were also unreliable and indicative of poor effort on the Veteran's part. The bases for the opinions thus clearly were set forth. It is apparent from these bases that this is a situation in which a definitive etiology opinion cannot be provided because required information, namely reliable and valid hearing tests contemporaneous to the time of service, cannot be obtained, and reliable current hearing acuity tests have been unobtainable due to the Veteran's repeated poor effort. Because the Jones requirements have been met, the Board may rely on the opinion as one reason for denying service connection. In summary, bilateral hearing loss and tinnitus were not diagnosed until decades after service. No medical professional has ever otherwise linked the Veteran's current bilateral hearing loss and tinnitus to service, despite multiple VA examinations being scheduled to obtain an etiology opinion. Moreover, any claims of a continuity of hearing problems or tinnitus from service are not credible in light of the Veteran's prior reports of onset in the 1980s. In light of the evidence, the Board concludes that the preponderance of the evidence is against the claims, and that service connection for bilateral hearing loss and tinnitus is not warranted. (CONTINUED ON NEXT PAGE) As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a lung disorder, to include asbestosis, is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs