Citation Nr: 1311892 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 08-29 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2008, the RO denied service connection for asbestosis and tinnitus. In June 2009, the RO denied service connection for bilateral hearing loss. The Veteran perfected an appeal of both rating decisions. A travel board hearing was held in January 2011 with the Veteran in Waco, Texas, before the undersigned Acting 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. In April 2011, the Board remanded the issues of service connection for hearing loss and tinnitus for additional evidentiary development. That development has since been completed, and a supplemental statement of the case (SSOC) was issued by the RO in August 2012. Although those issues have not been recertified for review, applicable law provides that certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue. 38 C.F.R. § 19.35 (2012). In April 2011, the Board also denied the Veteran's claim for service connection for a respiratory disability. The Veteran appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded that issue back to the Board in March 2012 for further action consistent with the JMR. Notably, in October 2012, the Veteran submitted a request that his case be returned to the Agency of Original Jurisdiction (AOJ) for review of newly submitted evidence or argument. Normally, any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant. As noted above, his claim for a respiratory disability was remanded by the Court in March 2012. His claims for hearing loss and tinnitus were most recently readjudicated in the August 2012 SSOC. However, neither the Veteran nor his representative has submitted any additional evidence or argument subsequent to those adjudications. Therefore, remand for AOJ review is not warranted. A review of the Virtual VA paperless claims processing system does not reveal any additional evidence pertinent to the present appeal. FINDINGS OF FACT 1. Asbestosis has not been demonstrated during the period on appeal; restrictive lung disease is not etiologically related to service. 2. Preexisting hearing loss has not been shown to have been aggravated by service. 3. Tinnitus is not etiologically related to service. CONCLUSIONS OF LAW 1. A respiratory disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. Bilateral hearing loss was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). 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 (2012). 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). Prior to the initial adjudication of the Veteran's claims, letters dated in June 2007, September 2007, and May 2009 were sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claims; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Therefore, he received complete notice regarding his claims for service connection. B. Duty to Assist The Veteran's service treatment records, VA treatment records, private treatment records, lay statements, and hearing transcript have been associated with the claims file. The Veteran was also afforded a VA examination with respect to his claims. 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 VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and, to the extent possible, provide opinions as to the etiology of the Veteran's claimed disabilities. The Board notes that the VA examiner who conducted the Veteran's May 2011 audiological examination and provided a March 2012 addendum was unable to provide an opinion as to the etiology of the Veteran's hearing loss without resort to speculation. The Court has held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. As discussed below, however, the examiner stated that she could not provide an opinion due to a lack of findings in the Veteran's separation examination in service. Unfortunately, additional development cannot provide this information. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). In addition, the Board notes that the March 2012 JMR remanded the issue of service connection for a respiratory disability in part for the Board to consider whether a clarification of the December 1996 private opinion is necessary pursuant to Savage v. Shinseki, 24 Vet. App. 259 (2011). Under Savage, when VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information, the Board must either seek clarification from the private examiner or the claimant, or clearly and adequately explain why such clarification is unreasonable. Id. at 270. This duty arises only in instances in which the missing information is relevant, factual, and objective, and where the missing evidence bears greatly on the probative value of the private report. Id. In this case, clarification of the December 1996 opinion is not necessary. The December 1996 opinion contains a diagnosis and is based on objective findings, but was generated many years prior to the filing of this claim. Clarification of a factual matter within this opinion is not necessary. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. C. Procedural Due Process The Veteran testified before the undersigned at a January 2011 Board hearing with regard to the service connection claims currently on appeal. Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim). Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Importantly, the Court also observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). See id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, to include the provision of a VA examination, and there was no indication that the appellant had any additional information to submit. Any deficiencies in the January 2011Board hearing under section 3.103(c)(2) did not prejudice the Veteran's service connection claims. Specifically, the outstanding issues are whether the Veteran's bilateral hearing loss, tinnitus, and a respiratory disability were incurred during active service. Although the undersigned did not explicitly identify the issues for the Veteran, the Veteran testified at the hearing, with the help of his representative, that he incurred his bilateral hearing loss, tinnitus, and respiratory disability during active service. Thus, the Veteran clearly understood that he needed evidence showing that his bilateral hearing loss, tinnitus, and respiratory disability are related to his service. Moreover, VA has otherwise developed the claims, including obtaining records on the Veteran's behalf and providing him with VA examinations with respect to the claims. Finally, the Veteran did not raise any new issues pertaining to his claims at the hearing, and there is also no indication that he has any outstanding evidence to submit. See id. at 499. Thus, in light of the development undertaken by VA with respect to this claim, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled. Id. at 498-99. Accordingly, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2). See id.; see also Sanders, 556 U.S. at 407, 410. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). A. Respiratory Disability The Veteran has asserted that he has asbestosis as a result of exposure to asbestos during service. 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. Service treatment records reflect no significant findings. Private records dated October 1996 reflect x-ray findings consistent with pleural asbestosis. A December 1996 statement from the Veteran's treating physician indicated that the Veteran had asbestos-related pleural disease present bilaterally, and that his reported shipboard exposure to asbestos fibers was amply indicative of his present malady being caused by such exposure. However, an October 2006 chest x-ray was normal. A VA examination conducted in February 2008 also included normal chest x-ray findings. The examiner noted a restrictive pattern in pulmonary function testing, but concluded that the Veteran's shortness of breath was not related to asbestos due to normal x-ray findings. While VA treatment records dated May 2009 also show a diagnosis of restrictive lung disease, an October 2009 CT scan revealed no evidence of pleural plaques or asbestosis. A December 2010 chest x-ray noted that the lungs were fully expanded and clear, with no evidence of any cardiopulmonary disease, and that findings were unchanged from December 2006. The Veteran filed his claim in April 2007. The Court has stated that the requirement of a current disability 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. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the only evidence of asbestosis is from over ten years prior to the filing of the Veteran's claim, and evidence beginning from six months prior to his claim does not show any asbestos-related disease. Subsequent records show similar findings. In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Therefore, service connection for asbestosis is not warranted. The Board has considered the Veteran's own statements made in support of his claim. However, he has not demonstrated the necessary knowledge or expertise to diagnose a condition such as asbestosis. Therefore, his statements regarding the existence of such a condition are not competent medical evidence of a diagnosis. The evidence also reflects findings of restrictive lung disease. However, the February 2008 VA examiner concluded that such findings were not related to asbestos exposure. This was based on the normal x-ray findings from the examination. There is no competent medical evidence to refute this conclusion or to otherwise suggest that restrictive lung disease is related to service. The Veteran has not demonstrated the necessary knowledge or expertise to render an opinion as to the etiology of restrictive lung disease. Therefore, service connection for restrictive lung disease is not warranted. In making these determinations, the Board acknowledges the Veteran's contentions that he was exposed to asbestos during service. However, even assuming that such exposure occurred, the competent medical evidence does not demonstrate that the Veteran has a current respiratory condition attributable to asbestos, as discussed above. B. Hearing Loss and Tinnitus A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies 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 (2012). Section 3.385 of Title 38, Code of Federal Regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran underwent an enlistment examination in January 1969. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 N/A 35 LEFT 5 0 15 N/A 35 The bilateral thresholds of 35 decibels at 4000 Hz indicate some degree of preexisting hearing loss. Therefore, the Veteran is not presumed to have entered service in sound condition. The Veteran underwent a separation examination in April 1971. However, puretone thresholds were not recorded. Whispered voice testing was also not conducted. Private treatment records dated January 2002 show complaints of tinnitus in the left ear. VA treatment records dated April 2009 show the Veteran reported having ringing in his ears for 40 years. Records dated May 2009 show diagnoses of tinnitus and bilateral high frequency sensorineural hearing loss. The Veteran testified at a Travel Board hearing in January 2011. He stated that he was exposed to weapons fire aboard his ship during service. He helped load the deck gun when it was fired, and did not use any hearing protection. He first noticed hearing loss sometime in the 1970's. After service, he worked at an air conditioning plant, a food chain, an insurance company, and a lumber yard. He later worked as a water utilities engineer. He acknowledged some occupational exposure to loud noise, but nothing comparable to his noise exposure from service. He reported having ringing in his ears for 30 years. He usually heard it when he first woke up in the morning. It had worsened with time. A VA examination was conducted in May 2011. The claims file was reviewed by the examiner, who noted the Veteran's history of military and occupational noise exposure. He reported an onset of constant bilateral tinnitus approximately 30 years ago. On examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 25 40 55 55 LEFT 0 15 30 50 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The examiner diagnosed bilateral high frequency sensorineural hearing loss. She noted that the Veteran had a preexisting hearing loss at 4000 Hz bilaterally on his enlistment exam in 1969. However, she stated that she was unable to give a definitive opinion regarding hearing loss or a hearing threshold shift without resorting to speculation because an audio exam was not performed at the time of separation. With respect to tinnitus, since there were no documented complaints of tinnitus in his service records, and because his reported onset of tinnitus was subsequent to service, she concluded that tinnitus was less likely than not related to service. In a March 2012 addendum, the examiner clarified that an opinion regarding hearing loss as a result of noise exposure, or as aggravated by noise exposure, could not be rendered without resorting to speculation. Based on the evidence of record, the Board finds that service connection for hearing loss and tinnitus is not warranted. The Veteran testified that he was exposed to loud noise during service, and his competent to make such a statement. Moreover, such noise exposure is otherwise consistent with the circumstances of the Veteran's service, and therefore his statements are credible. Therefore, noise exposure in service is conceded. However, although the Veteran is currently diagnosed with hearing loss and tinnitus, the overall weight of the evidence is against a finding that they were incurred in or aggravated by service. With respect to hearing loss, the VA examiner was unable to comment as to whether preexisting hearing loss noted at enlistment was aggravated by service, as the Veteran's service treatment records contain no additional audiological evaluations. The Board itself notes that another puretone threshold evaluation was not performed until the May 2011 VA examination, 40 years after the Veteran's separation from service. Where the medical professional cannot provide an opinion without resort to speculation, the statement provides neither positive nor negative support for service connection. Fagan v. Shinseki, 573 F.3d 1282, 1289-90 (Fed. Cir. 2009). However, there is no other competent medical opinion addressing the etiology of the Veteran's hearing loss. Therefore, the third element of service connection, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, has not been established. The Board has considered the Veteran's own statements made in support of his claim. However, he has not demonstrated the necessary knowledge or expertise to offer an opinion regarding the etiology of a condition such as sensorineural hearing loss. Therefore, to the extent that he has asserted that his hearing loss was aggravated by service, such statements are not competent medical evidence. Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. While the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, the Veteran has not specifically asserted that he has experienced hearing loss ever since his discharge from service. Rather, he stated that he first noticed hearing loss in the 1970's, which includes his discharge in 1971 as well as several years afterward. Moreover, even if the Veteran noted hearing loss since service, such an assertion is consistent with findings of preexisting hearing loss noted at enlistment. An assertion of continuous symptomatology does not establish that the Veteran's hearing loss was aggravated by noise exposure in service. Therefore, service connection for bilateral hearing loss is not warranted. With respect to tinnitus, the VA examiner concluded that tinnitus was less likely than not related to service. This was based on the lack of any complaints of tinnitus during service coupled with the Veteran's reports that he had experienced tinnitus for 30 years, which equates to an onset date subsequent to service. There is no competent medical opinion that refutes this conclusion or otherwise suggests that tinnitus was incurred in service. The Veteran is competent to report tinnitus. See Charles v. Principi, 16 Vet. App. 30, 374 (2002); Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993). However, he does not have the necessary knowledge or expertise to render an opinion on the etiology of tinnitus. Therefore, his statements attributing tinnitus to noise exposure in service are not competent medical evidence. In addition, while the Veteran reported a 30-year history of tinnitus during his Board hearing and to the VA examiner, he also reported a 40-year history of tinnitus to his VA physicians in April 2009. This would be consistent with an approximate onset date of tinnitus in April 1969, which is the beginning of the Veteran's period of service. However, his statements in this regard are not credible because of his inconsistent reports, and because tinnitus was not reported at any time during service. That is, the Board finds his current assertions, made almost 40 years after service, to be less credible than the negative contemporaneous records. Finally, service connection based on continuity of symptomatology is not applicable to tinnitus, as it is not a chronic disease listed in 38 C.F.R. § 3.309(a). Therefore, service connection for tinnitus is not warranted. ORDER Service connection for a respiratory disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ KRISTI L. GUNN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs