Citation Nr: 1314262 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 10-09 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbosacral spine. 2. Entitlement to service connection for a neck disability. 3. Whether new and material evidence has been received to reopen a service connection claim for bilateral hearing loss, and if so, whether service connection is warranted. 4. Whether new and material evidence has been received to reopen a service connection claim for tinnitus and if so, whether service connection is warranted. 5. Whether new and material evidence has been received to reopen a service connection claim for residuals of asbestos exposure, claimed as asbestosis, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active service from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2011, the Board remanded the case because the Veteran had indicated on his VA Form 9 that he wanted a hearing before the Board at the RO. The Veteran was scheduled for a videoconference hearing on March 13, 2013; however, the record reflects that he failed to report for the scheduled hearing. The Board finds that there is no Board hearing request pending at this time. 38 C.F.R. § 20.702(d) (2012). 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). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims to reopen service connection and to adjudicate service connection on the merits has been accomplished. 2. An unappealed November 2004 rating decision denied service connection for bilateral hearing loss, tinnitus, and residuals of asbestos exposure, claimed as asbestosis. 3. The Veteran did not submit a timely notice of disagreement to the November 2004 rating decision. 4. The evidence received since the November 2004 rating decision relates to an unestablished fact necessary to substantiate the claims for service connection for bilateral hearing loss, tinnitus, and residuals of asbestos exposure, claimed as asbestosis. 5. The Veteran did not engage in combat with the enemy 6. The Veteran has a current diagnosis of degenerative disc disease of the lumbosacral spine, bilateral hearing loss, tinnitus, and asbestosis. 7. There is no current disability with respect to the claimed neck disability. 8. The Veteran was exposed to loud noises (acoustic trauma) during service. 9. The Veteran was not exposed to respirable asbestos particles during service. 10. Symptoms of degenerative disc disease of the lumbosacral spine and hearing loss were not chronic in service and have not been continuous since service separation. 11. Degenerative disc disease of the lumbosacral spine, bilateral hearing loss, and tinnitus are not etiologically related to service. CONCLUSIONS OF LAW 1. The November 2004 rating decision, which denied service connection for bilateral hearing loss, tinnitus, and residuals of asbestos exposure became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The evidence received subsequent to the November 2004 rating decision is new and material to reopen service connection for bilateral hearing loss, tinnitus, and residuals of asbestos exposure, claimed as asbestosis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2012). 3. The criteria for service connection for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 4. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 6. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 7. The criteria for service connection for residuals of asbestos exposure, claimed as asbestosis have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2012); 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. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). 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. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. In timely letters dated July 2004 and March 2006, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The March 2006 notice included provisions for disability ratings and for the effective dates of the claims. The Veteran has had ample opportunity to respond and supplement the record. The Board is also 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, service personnel records, VA treatment records, private treatment records, and the Veteran's statements. Importantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384. The Veteran was also afforded VA medical examinations in connection with his service connection claims for degenerative disc disease of the lumbar spine, bilateral hearing loss, and tinnitus. To that end, 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 the VA opinions and findings obtained in this case are adequate. The opinions considered all of the pertinent evidence of record and provided a complete rationale for the opinions stated. In a statement dated February 2010, the Veteran requested VA examinations for his neck condition, residuals of asbestos exposure, and degenerative joint disease of the lumbar spine. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the Board notes that a spine VA examination was conducted in March 2011. As will be discussed in the sections below, the Board finds that VA medical examinations are not required for the Veteran's claims for service connection for a neck condition and residuals of asbestos exposure. New and Material Evidence Law and Analysis In a November 2004 rating decision, the RO denied service connection for residuals of asbestos exposure, bilateral hearing loss, and tinnitus, finding a lack of diagnosis for asbestosis, and finding that bilateral hearing loss and tinnitus neither began in, nor were caused by military service. The Veteran was properly notified of the November 2004 rating decision, did not appeal, and it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a June 2012 statement of the case, the RO reopened the claims of service connection for residuals of asbestos exposure, bilateral hearing loss, and tinnitus and denied service connection on the merits. Regardless of the RO's determination during the appeal as to whether new and material evidence has been received to reopen the claims of service connection for residuals of asbestos exposure, bilateral hearing loss, and tinnitus, the question of whether new and material evidence has been received to reopen the claims must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). The evidence of record at the time of the November 2004 rating decision included the Veteran's claim for service connection, service treatment records, and service personnel records. Evidence received since the November 2004 rating decision includes statements from the Veteran, VA treatment records, private treatment records, including a March 2010 audiology examination from S.C., VA examinations dated January 2006 (hearing loss and tinnitus), March 2011 (spine and hearing loss), and June 2011 (hearing loss and tinnitus). The RO denied service connection for residuals of asbestos exposure because the evidence did not show a current disability. In a private treatment note from Dr. B.M., received in February 2009, a diagnosis of asbestosis was made. Further, the RO denied service connection for bilateral hearing loss and tinnitus because the evidence did not show that the Veteran's conditions began in, or were caused by military service. A March 2010 private audiologist opined that the Veteran's hearing loss and tinnitus were related to service. Also, the January 2006, March 2011, and June 2011 VA examinations discuss the etiology of the Veteran's hearing loss and tinnitus. Therefore, based on this additional evidence, the Board finds that the evidence is new and material to reopen service connection for residuals of asbestos exposure, bilateral hearing loss, and tinnitus. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Before adjudicating on the merits the reopened claim for service connection for residuals of asbestos exposure, bilateral hearing loss, and tinnitus, the Board must first determine whether such action will prejudice the Veteran. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). In this case, in a May 2007 letter, the Veteran was given adequate VCAA notice of the need to submit evidence or argument on the underlying issue of service connection. During the pendency of this appeal, the Veteran has submitted lay and medical evidence addressing the merits of his claim for service connection. At all times during the claim, the Veteran has addressed the merits of service connection, and did not limit his contentions or evidence to the question of whether new and material evidence had been received. In a June 2012 statement of the case, which provided the legal criteria for service connection on the merits, the RO reopened and denied these claims on the merits. For these reasons, the Board may proceed to adjudicate the merits of the claims of service connection for residuals of asbestos exposure, bilateral hearing loss, and tinnitus without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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). 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). The conditions of degenerative disc disease of the lumbosacral spine with evidence of arthopathy ( a degenerative joint disease) and sensorineural bilateral hearing loss (organic disease of the nervous system) are chronic conditions listed under 38 C.F.R. § 3.303(b); as such, 38 C.F.R. § 3.303(b) is applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In contrast, the issues of service connection for a neck condition, tinnitus, and residuals of asbestos exposure are not chronic conditions under 38 C.F.R. § 3.303(b) and will be adjudicated using the general principles of service connection. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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 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). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Combat Rule In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b) however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Although the Veteran served during a period of war, the evidence does not indicate, and the Veteran does not contend, that he engaged in combat with the enemy, or that his claimed disabilities are related to combat. As such, the combat rule is not applicable. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Analysis of Service Connection Claims I. Degenerative Disc Disease of the Lumbar Spine In this case, the Veteran is seeking service connection for degenerative disc disease of the lumbar spine, which he contends is related to lifting heavy artillery in service. See Veteran's statement dated July 2012. The Veteran was diagnosed with degenerative disc disease of the lumbar spine in October 2001. See November 2000 treatment note from Dr. T.H. and March 2011 VA spine examination report. The Board finds that symptoms of degenerative disc disease of the lumbar spine were not chronic in service. Service treatment records reflect that the Veteran sought treatment in September 1953 for a "backache." The September 1953 service treatment record noted that the Veteran had experienced back pain for 2 months. There is no record of any subsequent treatment for the same symptomatology. The Veteran's February 1955 service separation examination revealed normal findings for the spine. Further, there is no evidence showing a diagnosis of degenerative disc disease of the lumbar spine in service or within one year after service separation. For these reasons, the Board finds that symptoms of degenerative disc disease of the lumbar spine were not chronic in service. The Board next finds that the weight of the evidence demonstrates that symptoms of degenerative disc disease of the lumbar spine have not been continuous since service separation. Upon review of the record, the evidence does not reveal any complaints, treatment, or diagnosis for degenerative disc disease of the spine or any back disorder until November 2000, 45 years after service separation. See November 2000 note from Dr. T.H. (reporting mild discogenic disease of the lumbar spine). The Veteran has not provided any evidence, lay or medical, which would show continuity of symtomotology from service separation in 1955 to his first reported treatment for back pain in 2000. In February 2007 and March 2007 VA treatment notes, the Veteran complained of back pain lasting two months. No further follow-up visits or treatments (VA or private) are of record. Given the lack of complaints, treatment, and diagnosis of a lumbar spine disorder for over 45 years after service separation, the Board finds that symptoms of degenerative disc disease of the lumbar spine have not been continuous since service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). Next, the Board finds that the weight of the competent and probative evidence demonstrates that the currently diagnosed degenerative disc disease of the lumbar spine is not related to service. In the March 2011 VA spine examination, which weighs against the Veteran's claim, the VA examiner accurately noted the Veteran's history that included the in-service report of back pain in 1953. The VA examiner reviewed the claims file, reviewed x-ray reports, and conducted a physical evaluation of the Veteran's spine. A diagnosis of age-acquired disc disease of the lumbar spine was rendered. The VA examiner stated that there was absolutely no indication of traumatic changes in the Veteran's spine, and there was no evidence that he continued to have issues with his back after being discharged from the military. As such, the VA examiner opined that the Veteran's current lumbar spine issues were age-acquired and not caused by or a result of military service. The Board notes that the remaining evidence of record, including private and VA treatment notes, do not contain any medical opinion which provides a link between the Veteran's lumbar spine disability and service. The Board has considered the Veteran's statements asserting a nexus between his currently-diagnosed degenerative disc disease of the lumbar spine and active duty service. While the Board acknowledges that he is competent to report symptoms as they come to him through his senses, degenerative disc disease of the lumbar spine is not the type of disorder that a lay person can provide competent evidence on questions of etiology. See Layno, 6 Vet. App. at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, 10 Vet. App. 67, 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Based on the evidence of record, the Board finds that the weight of the competent and probative evidence is against a finding of relationship between the Veteran's current degenerative disc disease of the lumbar spine and service, including no credible evidence of chronic symptoms of degenerative disc disease in service, continuous symptoms after service, or medical evidence of a nexus between the service and the currently diagnosed degenerative disc disease of the lumbar spine. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for degenerative disc disease of the lumbar spine, and the claim must be denied. II. Neck Condition The Veteran contends that he has a current neck disability that is related to service. The Board notes that the Veteran has not provided any details in regard to his claimed neck condition. As noted above, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden, 381 F.3d 1163; see also Hickson, 12 Vet. App. at 253. With regard to the existence of a current disability, the Board finds that the weight of the evidence demonstrates the Veteran does not have a diagnosed neck disability. Service treatment records, including the February 1955 service separation examination are negative for any complaints, treatment, or diagnosis of a neck disability. Further, private medical records and VA treatment records do not provide any diagnosis for the Veteran's purported neck disability. The only medical evidence referencing the Veteran's neck is a March 2007 VA treatment record which noted "neck pain." Pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Accordingly, based on the evidence of record, the Board finds that the Veteran does not have a current neck disability. The Board has considered the Veteran's February 2010 request for a VA examination for his claimed neck disability. The Board finds, however, that a VA medical examination is not required. First, for the reasons discussed above, the record does not include any competent evidence of a current disability. Further, the Veteran has not alleged, and the evidence does not demonstrate, that an event, injury, or disease occurred in service. Finally, the evidence of record does not provide any indication that the alleged neck condition may be associated with the Veteran's service. Accordingly, the Board finds that a VA examination is not required. See McLendon, 20 Vet. App. at 79. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, without a current diagnosis, there may be no service connection for the claimed neck condition. As such, the weight of the evidence of record does not satisfy the elements of service connection for a neck condition under the criteria of 38 C.F.R. § 3.303 because it shows that the Veteran does not have a neck disability. For these reasons, the Board finds that a preponderance of the evidence is against the aspect of the Veteran's claim for service connection for a neck disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. III. Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss is due to noise exposure during service. During the January 2006 VA audiological examination and in a private audiological examination conducted by a certified audiologist, the Veteran stated that he was exposed to artillery noise, gun shots, and anti-aircraft weapons without the aid of hearing protection. See also Veteran's statement dated July 2012. A hearing loss disorder for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385 (2012). See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). As noted above, an organic disease of the nervous system, such as the Veteran's sensorineural bilateral hearing loss, is considered a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to this issue. See Walker, 708 F.3d at 1331. First addressing the question of a current disorder, after a review of the medical evidence of record, the Board finds that the Veteran has currently diagnosed bilateral hearing loss for VA purposes during the appeal period. The Veteran's auditory thresholds were over 26 decibels for at least three of the frequencies in the January 2006 and June 2011 VA audio examinations, as well as in a private audiometric evaluation dated March 2010. See 38 C.F.R. § 3.385. On the question of in-service injury or disease, the Board finds that the Veteran is both competent and credible to report that he was exposed to loud noise (acoustic trauma) to both ears in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). During the January 2006 VA examination and in a statement dated July 2012, the Veteran stated that his primary military occupational specialty was artillery. The Veteran reported that during service he was exposed to firearms, machine guns, mortars, missile launchers, firing range noise, and heavy artillery. The Veteran stated that he did not use hearing protection during service. According to the Veteran's DD Form 214, the Veteran's military occupational specialty was cook. Service personnel records, however, reveal that the Veteran also worked as a cannoneer. 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 exposure to hazardous noise for veterans with a duty MOS of Cannon Crewmember as "highly probable." For these reasons, the Board finds the Veteran was exposed to loud noise as a cannoneer during service. Next, the Veteran has asserted that he experienced ringing in the ears and hearing loss during service. See July 2012 VA Form 9. The Board finds, however, that the evidence of record, including service treatment records and the February 1955 service separation examination, does not indicate any complaints, treatment, or diagnosis for hearing loss. Further, service records revealed that the Veteran passed bilateral whisper tests in 1952 and in 1955. See December 1952 service entrance examination report and February 1955 service seaparation examination report. As such, the Board finds that symptoms of bilateral hearing loss were not chronic in service. 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). In this case, the lay and medical evidence of record does not demonstrate the Veteran's symptoms of bilateral hearing loss have been continuous since separation from service in February 1955. Following separation from service, the evidence of record shows no complaints, diagnosis, or treatment for bilateral hearing loss until September 2005. The absence of post-service complaints, findings, diagnosis, or treatment for over 50 years after service is one factor that tends to weigh heavily against a finding of continuous symptoms of bilateral hearing loss after separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson, 12 Vet. App. at 453 (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Board notes that there is also evidence in the record showing that the Veteran injured both ears in a scuba diving incident in 2000; however, no mention of hearing loss was made at the time. See Dr. Williams' treatment note dated March 2000. Additionally, at the January 2006 VA examination, the Veteran reported that he was unaware of when his hearing loss started and reported that it had significantly worsened two years prior (2004). In a March 2011 VA examination, however, the Veteran stated that his hearing loss began after discharge from service. The Board finds the Veteran's statements to the January 2006 and March 2011 VA examiners inconsistent, and therefore, not credible. Given the Veteran's inconsistent statements regarding the onset of his hearing loss and the lack of complaints, treatment, and diagnosis for hearing loss for over 50 years, the Board finds the Veteran's bilateral hearing loss symptoms have not been continuous since service separation. The Board further finds that the weight of the evidence demonstrates the Veteran's currently diagnosed bilateral hearing loss is not related to active service, specifically including the exposure to loud noise while in service. In a January 2006 VA audiological examination, the examiner reviewed the claims file, performed audiometric testing, and noted the Veteran's reported history. During the evaluation, the Veteran stated that he could not recall the exact onset of his hearing loss and stated that it had significantly worsened approximately two years ago. The Veteran reported being exposed to loud noises during service, including gun fire, mortars, and heavy artillery without the aid of hearing protection. Upon physical examination, the VA examiner diagnosed the Veteran with bilateral moderate to profound sensorineural hearing loss. The examiner opined that, based on the audiometric data found in the claims file and the Veteran's description of onset time, military noise exposure did not cause or contribute to the Veteran's bilateral hearing loss. The VA examiner's rationale included the Veteran's alleged onset of hearing loss 47 years after service separation. Also, the VA examiner noted that the service records revealed that the Veteran passed bilateral whisper tests in 1952 and in 1955. In a March 2010 private audiological examination by certified audiologist S.C., the Veteran reported noise exposure in service with no hearing protection. Upon audiometric testing, S.C. found that the Veteran had bilateral moderate to profound sensorineural hearing loss. The certified audiologist opined that the etiology of the hearing loss was at least as likely as not related to excessive noise exposure while serving in the military. The rationale for this conclusion was based on the fact that this condition was known to be associated with excessive noise exposure. In March 2011 the Veteran was afforded a second VA audiology examination in order to clarify the opposing medical opinions discussed above. During the evaluation, the Veteran stated that his hearing was normal upon entry into service and was noticeably different and lessened after service separation. The Veteran claimed that his hearing loss had progressively worsened over the years. Audiometric testing was not conducted and a physical examination of the Veteran's ears had to be terminated because the Veteran could not tolerate the manual disimpaction of his ears. The March 2011 VA examiner opined that the Veteran's hearing loss is most likely caused by the Veteran's time in the service and is due to loud noise exposure and loud noise trauma. In regard to whether the Veteran's hearing loss was caused by the scuba diving accident in 2000, the VA examiner stated that he could not provide an opinion given the unclear details of the event by the Veteran. In a subsequent June 2011 VA audiological examination, the examiner reviewed the claims file, including the January 2006 VA examination, March 2010 private audiological evaluation, and the Veteran's service treatment records. During the evaluation, the Veteran reported that his hearing loss began no more than 10 years ago (approximately 2001). The VA examiner performed diagnostic and clinical testing and diagnosed the Veteran with mild to profound bilateral hearing loss. The examiner opined that military noise exposure was not responsible for the Veteran's bilateral hearing loss. The June 2011 VA examiner noted that although the private audiological opinion dated March 2010 opined that the Veteran's hearing loss was related to service, the private audiologist did not have access to the Veteran's claims file or previous audiological reports and medical history. Upon review of the medical evidence of record, the Board has accorded significant probative value to the January 2006 and June 2011 VA audiological opinions. In these examination, the VA audiologists noted that their opinions were based on a review of the claims file, including service treatment records, and the Veteran's statements. Further, the January 2006 and June 2011 VA examiners performed audiometric testing and conducted a physical examination of the Veteran. Both VA examiners opined that the Veteran's hearing loss was not related to service. Importantly, both VA examiners provided a rationale for the nexus opinion that was based on reliable principles and sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). For example, both the January 2006 and June 2011 VA examiners noted that the Veteran's reported onset of hearing loss was decades after service separation (January 2006 VA examiner noted onset as 47 years after service separation and June 2011 VA examiner noted onset as 46 years after service separation). In contrast, the Board finds that the March 2010 private audiological examination by S.C. and the March 2011 VA examination to be of little probative value. First, the March 2010 private audiologist did not review the claims file, which would have included service treatment records, the January 2006 VA examination, and VA treatment records. Given the lack of complaints, treatment, or diagnosis for hearing loss for over four decades, the Board finds that the March 2010 private audiologist's failure to consider such a long lapse of time between the claimed onset of hearing loss and actual treatment for hearing loss to be highly probative in determining the weight to be assigned to the March 2010 private nexus opinion. Likewise, the March 2011 VA audiology examination failed to consider the long lapse of time between the claimed onset of hearing loss and actual treatment or diagnosis. The March 2011 VA audiologist was asked by the RO to clarify the opposing nexus opinions found in the January 2006 VA examination and the March 2010 private audiological examination; however, the Board finds that the March 2011 VA examiner failed to provide an adequate clarifying opinion. Specifically, the March 2011 VA examiner did not discuss the rationale provided in the January 2006 VA examination, which included normal whisper test results upon service separation and the long lapse of time (47 years) between the alleged onset of hearing loss and treatment or diagnosis for hearing loss. Importantly, the March 2011 VA examiner did not address the fact that the March 2010 private audiologist did not have access to the Veteran's claims file, which would have included service treatment records and evidence of a scuba diving ear injury. Importantly, despite a positive nexus opinion, the March 2011 VA examiner did not provide a rationale for his conclusion. For these reasons, the Board finds that the March 2010 private audiological evaluation and the March 2011 VA examination to be of little probative value as to whether the Veteran's bilateral hearing loss is related to service. The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed bilateral hearing loss and active duty service; however, given the inconsistencies in the Veteran's statements, the Board finds the Veteran's reported histories not credible. For example, in the January 2006 VA examination, the Veteran stated that he could not recall the exact onset of his hearing loss and stated that it had significantly worsened approximately two years ago. During the March 2011 VA evaluation, the Veteran stated that his hearing was normal upon entry into service and was noticeably different and lessened after service separation. In the June 2011 VA examination, the Veteran reported that his hearing loss began 10 years ago (approximately 2001). Further, the Veteran sought treatment in 2000 for an ear injury after scuba diving; however, the Veteran has not been able to provide clear details regarding this incident. See March 2011 VA examination report. For these reasons, the Board finds that the Veteran's statements regarding the date of onset of hearing loss not credible, and thus, of little probative weight. Also, despite the Veteran's contention that his bilateral hearing loss is related to service, hearing loss is not the type of disorder that a lay person can provide competent evidence on questions of etiology. See Layno, at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person). Such competent and probative evidence has been provided by the VA January 2006 and June 2011 VA audiologists who reviewed the in-service audiometric results and the Veteran's claims file. Here, the Board attaches greater probative weight to the VA audiologists' opinions than to the Veteran's statements, which the Board has found to be inconsistent and not credible. See Cartright, 2 Vet. App. at 25. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the claim must be denied. IV. Tinnitus The Veteran contends that he experiences intermittent cricket-like noise in his ears occurring a few times a week. See January 2006 VA audiological examination report. The Board notes that, unlike sensorineural bilateral hearing loss, tinnitus is not an organic disease of the nervous system; as such, 38 C.F.R. § 3.303(b) does not apply. See Walker, 708 F.3d 1331. Accordingly, the general principles of service connection will be used in adjudicating the claim. In Charles v. Principi, 16 Vet. App. 370 (2002), the Court determined that tinnitus is the type of disorder associated with symptoms capable of lay observation. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 312 (2007); see also Jandreau, 492 F.3d at 1372 (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition). Based on the Veteran's assertions in the January 2006, March 2010, March 2011, and June 2011 audiological examinations, the Board finds that the Veteran has a current disability of tinnitus. As discussed in detail in the previous section, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) in service. The remaining issue is whether there is a nexus between the Veteran's tinnitus and service, specifically in-service noise exposure. The Board further notes that a review of service treatment records reveal no complaint, treatment, or diagnosis of tinnitus. At the time of the June 2006 VA examination, the Veteran reported to the examiner that the onset of tinnitus was two years earlier. The June 2011 VA examiner noted that tinnitus began no more than 10 years earlier. The June 2011 VA examination report also referred to the previous history noted in the prior VA examination. In the January 2006 and June 2011 VA examinations, the VA audiologists opined that based on the Veteran's reported onset time of tinnitus, military noise exposure did not cause and/or contribute to the Veteran's tinnitus. The VA examiners stated that their opinions were based on the fact that the reported onset date was 47 years after service separation. In the March 2010 private audiological examination, the Veteran reported a history of tinnitus. The private audiologist opined that the etiology of tinnitus was at least as likely as not related to excessive noise exposure while serving in the military. The rationale for this conclusion was based on the fact that tinnitus was known to be associated with excessive noise exposure. In the March 2011 VA examination, the Veteran reported tinnitus symptoms after service separation; however, the VA audiologist provided a nexus opinion only as to hearing loss and not tinnitus. As such, the March 2011 VA examination is of no probative value on the issue of service connection for tinnitus. As discussed in detail above, the Board finds that the March 2010 private audiological examination by S.C. to be of little probative value. The March 2010 private audiologist did not review the claims file and his opinions were based, in large part, on the Veteran's reported histories, which the Board has found to be inconsistent, and thus, not credible. The March 2010 audiologist also did not address the lapse of time between the claimed onset of tinnitus and actual treatment for tinnitus. For these reasons, the Board assigns little probative weight to the March 2010 opinion. Instead, as mentioned in the previous section, the Board has accorded significant probative value to the January 2006 and June 2011 VA audiological opinions. During these examination, the VA audiologists reviewed the claims file, which included the Veteran's service treatment records. Both VA examiners opined that the Veteran's tinnitus was not related to service. Importantly, both VA examiner provided a rationale for the nexus opinion that was based on reliable principles and sound reasoning, including all the evidence of record, and not simply the Veteran's statements. For these reasons, the Board finds that tinnitus is not etiologically related to service. Accordingly, service connection for tinnitus is not warranted. V. Residuals of Asbestos Exposure There is no specific statutory guidance with regard to asbestos related claims, nor has the VA Secretary promulgated any specific regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, para. 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chapter 2, Section C, Topic 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols provided in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV lists some of the major occupations involving exposure to asbestos including mining, milling, work in shipyards, insulation work, demolition of old buildings, 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, and military equipment. 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. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers 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). 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. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). VA satisfied the above requirements by obtaining the Veteran's service treatment records and service personnel files and providing the Veteran an asbestos questionnaire in July 2004. Turning to the Veteran's service connection claim for residuals of asbestos exposure, claimed as asbestosis, the Board finds that the Veteran has a current diagnosis of asbestosis. See Dr. B.M. chest radiograph report. The Board notes that the report from Dr. B.M. is undated; however, in his report, Dr. B.M. references a February 2001 chest radiograph. Accordingly, the Board finds that Dr. B.M.'s diagnosis of asbestosis must have occurred after February 2001, more than 46 years after service separation. In the July 2012 VA Form 9, the Veteran stated that he was exposed to asbestos during service. Specifically, the Veteran contends that the 90 mm guns that he used during service were made with asbestos. In this case, the Veteran's service treatment records are negative for any type of pulmonary disorder, and the chest and lungs were found to be normal at his separation examination in February 1955. Significantly, service personnel records are silent with respect to any asbestos exposure. The Veteran's military occupational specialty as documented on his DD 214 was as cook. Service personnel records reveal that the Veteran also worked as a cannoneer. Upon review of the record, the Board finds that the evidence does not show that the Veteran was exposed to asbestos in service. The Veteran's military occupational specialties (cook and cannoneer) are not indicative of exposure to asbestos in service. The service personnel records are negative for asbestos exposure. Although the Veteran filed his claim for service connection for asbestosis in July 2004, the Veteran was non-responsive to the asbestos questionnaire sent to him in July 2004 and did not report specific details about his alleged asbestos exposure until July 2012. Moreover, although the Veteran contends that the 90 mm guns which he used during service were made with asbestos, he did not indicate how using these weapons would have exposed him to respirable asbestos particles. He has also not explained how he knew there was asbestos in the 90 mm guns or how the gun particles could have become airborne. The Board acknowledges that the Veteran is competent to report on factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the issue of whether 90 mm guns contain respirable asbestos particles is a question requiring highly technical expertise and is beyond the competence of the Veteran. Additionally, as noted above, one factor VA should consider in resolving claims involving asbestos exposure is whether there was pre-service and/or post-service occupational or other asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Also, as discussed in subpart ii of M21-1MR Part IV, some of the major occupations involving exposure to asbestos include insulation work, demolition of old buildings, carpentry, and construction. In the present case, the Veteran reported that he worked as a carpenter for 54 years. See March 2010 private evaluation from S.C. The Board finds that the Veteran's long career as a carpenter is one factor that weighs against the Veteran's claim; specifically, it tends to show that the Veteran could have been exposed to asbestos as a resulted of his post-service occupation and not due to service. In sum, the Veteran's unsupported statement that he was exposed to asbestos in service does not establish actual exposure. Although there is medical evidence of asbestosis, there is simply no competent evidence showing that the Veteran was exposed to asbestos in service. For these reasons, the Board finds that the preponderance of the evidence weighs against a finding of in-service asbestos exposure. Despite the Veteran's February 2010 request for a VA examination, he has not been afforded an examination in regard to his claim for service connection for residuals of asbestos exposure. In this regard, the Board finds that a VA medical examination is not required. For the reasons discussed above, the competent evidence of record does not demonstrate that the Veteran was exposed to asbestos, and as such the evidence does not demonstrate that an event, injury or disease occurred in service. Also, the competent evidence of record does not provide any indication that currently diagnosed asbestosis may be associated with the Veteran's service. Therefore, the Board finds that a VA examination is not required. See McLendon, 20 Vet. App. at 79. Accordingly, the Board concludes that the preponderance of evidence is against the Veteran's claim for residuals of asbestos exposure. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been received, service connection for bilateral hearing loss is reopened. New and material evidence having been received, service connection for tinnitus is reopened. New and material evidence having been received, service connection claim for residuals of asbestos exposure, claimed as asbestosis is reopened. Service connection for degenerative disc disease of the lumbosacral spine is denied. Service connection for a neck disability is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for residuals of asbestos exposure, claimed as asbestosis is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs