Citation Nr: 1322801 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-22 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to service connection for a lung disorder, including as secondary to asbestos exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty in the U. S. Navy from January 1961 to December 1964 and from March 1965 to May 1977. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2006 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That decision, in part, granted service connection for bilateral hearing loss and assigned an initial noncompensable (0 percent) rating retroactively effective from December 21, 2005, the date of receipt of this claim. The Veteran appealed that initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others. This will compensate the Veteran for this variance.) He also appealed the denials of his claims of entitlement to service connection for a lung disorder and for residuals of fractures of the fourth and fifth metacarpals of his right hand. Because they required further development, in March 2011 the Board remanded these claims to the RO via the Appeals Management Center (AMC). And in another decision since issued in August 2012, the AMC granted the claim for service connection for the residuals of the fourth metacarpal fracture, assigning an initial 0 percent rating for this disability retroactively effective from December 21, 2005, the date of receipt of this claim. The Veteran has not since, in response, separately appealed either this initial rating or effective date. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Thus, the only claims still at issue concern whether he is entitled to an initial compensable rating for his bilateral hearing loss and whether he is entitled to service connection for a lung disorder. Despite the additional development of these other claims on remand, the AMC continued to deny them in an August 2012 Supplemental Statement of the Case (SSOC), so they are again before the Board. Still additional claims of entitlement to service connection for gastroesophageal reflux disease (GERD) and hemorrhoids have been raised by the record (see the June 2005 informal hearing presentation (IHP) from the Veteran's representative), but have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not presently have jurisdiction to consider these additional claims so is referring them to the RO for appropriate development and consideration. FINDINGS OF FACT 1. A current lung or pulmonary disorder is not shown. 2. At worst, the Veteran has level I hearing loss bilaterally (i.e., in each ear). CONCLUSIONS OF LAW 1. It is not shown the Veteran has a lung disorder, much less due to or as a consequence of his active military service - including especially exposure to asbestos. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria also are not met for an initial compensable rating for his bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and its implementing regulations impose obligations on VA to provide those claiming entitlement to VA benefits appropriate notice and assistance upon receipt of a complete or substantially complete application. 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). In particular, the notice requirements of the VCAA require VA to notify the claimant of the information or evidence necessary to substantiate the claim, including apprising him of the information or evidence he is responsible for obtaining versus the information or evidence VA will obtain for him. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A so-called "fourth" requirement to ask that he provide any evidence in his possession pertaining 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/CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), holding that these 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. Those five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's military service and the disability; but also the "downstream" (4) degree of disability; and (5) effective date. So, ideally, the VCAA notice should address all five elements of his claim for service connection. But as specifically concerning the claim for a higher (i.e., compensable) initial rating for the bilateral hearing loss, once service connection has been granted, the claim as it arose in its initial context has been substantiated, so additional notice is not required concerning any "downstream" element of the claim, thus not regarding the rating initially assigned for the disability or effective date. Furthermore, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3); VAOPGCPREC 8-2003 (wherein VA's General Counsel found that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and this line of precedent cases and GC opinion, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a Statement of the Case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. The RO provided the Veteran an SOC in May 2007 citing the applicable statutes and regulations and containing discussion of the reasons or bases for assigning an initial 0 percent rating for his bilateral hearing loss and no greater rating. He therefore has received all required notice concerning this claim. He also has received all required notice concerning his claim of entitlement to service connection for a lung disorder. In a January 2006 letter, the RO provided him notice regarding what information and evidence was needed to substantiate claims for service connection as well as what information and evidence he needed to provide and what evidence VA, instead, would obtain for him. The RO sent him that letter before initially adjudicating his claim in July 2006, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A March 2006 letter, also sent before initially adjudicating this claim, included additional discussion of the "downstream" disability rating and effective date elements of this claim in the eventuality service connection is granted. He therefore also has received all required notice concerning this claim. VA's duty to assist under the VCAA includes helping the claimant obtain all potentially relevant records - including service treatment records (STRs) and other pertinent records, such as those concerning his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, so has met this additional VCAA obligation. The record before the Board contains the STRs, post-service VA clinical records, and relevant VA examination reports. Regarding the latter, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA medical opinions obtained in this case are adequate. The nexus opinions provided regarding the Veteran's claimed lung condition considered all of the pertinent evidence of record, including his personal lay statements, and provided explanatory rationale for the opinions stated - including as concerning whether he even has this alleged disorder, much less on account of his military service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning this claim has been met. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Veteran additionally was examined and reexamined to assess and reassess the severity of his bilateral hearing loss in relation to the applicable rating criteria. The most recent evaluation of his hearing was in April 2011, and there is supplemental comment in a June 2011 addendum. There is no indication of an appreciable worsening of his hearing loss since that most recent evaluation. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination); see, as well, VAOPGCPREC 11-95 (April 7, 1995); Green v. Derwinski, 1 Vet. App. 121 (1991). VA is not obligated to provide another examination solely because of the mere passage of time since an otherwise adequate examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Hence, seeing as though there is sufficient evidence in the file to properly assess the severity of the Veteran's bilateral hearing loss in relation to the applicable rating criteria, the Board finds that additional examination of this disability is not required. 38 C.F.R. §§ 3.327(a), 4.2. Moreover, there was compliance with the Board's March 2011 remand directives in providing the additionally required VCAA notice mentioned in that remand, also in developing an evidence of exposure to asbestos before, during, and since the Veteran's military service, obtaining copies of outstanding audiograms and additional relevant treatment records, and having him undergo VA compensation examinations for medical opinions concerning his alleged lung disorder (as regarding diagnosis and etiology) and, as mentioned, reassessing the severity of his bilateral hearing loss. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002)). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 ; 38 C.F.R. §§ 3.102, 4.3 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, is service connected, unless clearly attributable to intercurrent causes. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). But if chronicity (permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. But the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has explained that this notion of showing continuity of symptomatology following service under 38 C.F.R. § 3.303(b) as an alternative means of establishing the required linkage between the currently claimed disability and service only applies to conditions that are specifically identified as "chronic" in § 3.309(a). And the condition at issue, asbestosis or other asbestos-exposure-related disease, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012); therefore 38 C.F.R. § 3.303(b), which pertains to continuity of symptomatology, does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing entitlement to service connection generally requires having: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a link between the disease or injury in service and the present disability - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). So as is apparent, the most fundamental requirement for any claim for service connection is that the Veteran first must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). If there is not this required proof of current disability, then this necessarily invalidates the claim because there is no present-day disability to relate or attribute to the Veteran's military service, including to any particular disease, injury or event that may have occurred during his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). There are no specific statutes or regulations pertaining to service-connection claims involving asbestos exposure. However, the Court has indicated claims involving asbestos exposure should be analyzed under the appropriate administrative guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA has set forth administrative guidelines for compensation claims based on asbestos exposure. See M21-1, VBA Adjudication Procedural Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 (December 13, 2005). VA previously had issued a circular on asbestos-related diseases, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which had provided 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 M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, (1) that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; (2) that VA is to develop any evidence of asbestos exposure before, during and after service; and (3) 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. Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire proofing materials, and thermal insulation. The Manual also lists some of the major occupations involving exposure to asbestos including mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and foreign materials, asbestos cement sheet and pipe products, and military equipment. Id., at Subsection (f). 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. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and be inhaled and swallowed. Id., at Subsection (b). Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos related diseases/abnormalities: Fibrosis (the most commonly occurring of which interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id., at Subsection (b). The guidelines provide that the latency period for asbestos related diseases varies from 10 to 45 years or more between first exposure and development of disease. VA Manual, paragraph 9 (d). The extent and duration of exposure to asbestos is not a factor for consideration. Id., at Subsection (D). Thus, an asbestos-related disease can develop from brief exposure to asbestos (as little as a month or two) or indirectly as a bystander. See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21b. M21-1, Part VI, para. 7.21(c) provides, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. See also The VA Manual, Paragraph 9(e). Rating specialists must develop any evidence of asbestos exposure before, during, and after service. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions 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. The evaluation of evidence in deciding a claim generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also 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 additionally must determine whether the evidence also is credible). Only if evidence is both competent and credible does it in turn ultimately have consequent probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"")). See also Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). 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. Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), citing its decision in Madden, the Federal Circuit Court recognized that that Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the lower Veterans Court (CAVC) also has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Mere review of the file is not determinative of the opinion's probative value, however, because a credible history of the disability may be obtained in other ways, such as the provider having treated the Veteran over a number of years and being familiar with his condition. Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also significant, and indeed most important, is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. 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). Consider also that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). 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. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner 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). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") 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 him or obtained on his behalf be discussed in detail, certainly not exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background A January 1961 X-ray of the Veteran's chest revealed no defects. All comprehensive medical evaluations conducted during his military service revealed normal lungs, and in multiple reports of medical history completed by him he expressly denied asthma, shortness of breath, a chronic cough, and other pulmonary symptoms. His military service ended in May 1977. A January 2003 VA treatment record indicated a diagnosis of acute pharyngitis and early bronchitis. A December 2003 VA progress note reflected a history of chronic obstructive pulmonary disease (COPD). A May 2006 VA computerized problem list included acute bronchitis, acute pharyngitis, and a cough. In August 2006, while seeking VA treatment for an unrelated medical problem, the Veteran complained of shortness of breath with exertion and provided a history of possible asbestos exposure during his service in the Navy. No diagnosis related to his report of shortness of breath was rendered. In September 2006, pulmonary function tests (PFTs) were performed, and no airway obstruction or restrictive defect was discerned. In April 2011 the Veteran had a VA respiratory examination following and as a result of the Board's March 2011 remand of this claim. He reported that since service he had experienced dyspnea with extreme exertion only. Additionally, he reported coughing at night but indicated that he had reflux as well. He also had allergic sinusitis with postnasal drip. He denied a diagnosis of a chronic lung condition, and he did not take any medication for a chronic lung condition. There was no history of a productive cough, wheezing, non-anginal chest pain, asthma, bronchiectasis or other similar symptoms. There was a positive history of a nonproductive cough and dyspnea on severe exertion. Upon examining him, the examiner found no condition that could be associated with restrictive pulmonary disease. An X-ray of the chest and PFTs were essentially normal. The diagnosis was normal pulmonary/respiratory examination. Further, the examiner indicated there was no evidence of asbestos-based symptoms on physical examination, radiologic studies, or PFT. The examiner also determined the Veteran did not have asbestosis, explaining that the symptoms the Veteran experienced resulted from chronic GERD as well as his chronic allergic rhinitis. Discussion The Veteran alleges that he suffers from a lung disorder due to asbestos exposure during his service in the Navy. But aside from having to establish this required cause-and-effect correlation, he must first show that he has some sort of asbestos-exposure-related disease. See, e.g., Brammer, supra. However, as already alluded to, this present disability requirement is satisfied if the disability was extant when the claim for benefits was filed, even if it since has resolved. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Here, though, there simply is no evidence of a pulmonary disorder other than a mention of COPD in a 2003 medical history list. And as the acronym suggest, COPD is a type of obstructive rather than restrictive lung disease. This apparently is the reason the VA examiner implicitly made this distinction by pointing out the Veteran does not have any restrictive lung disease, including most notably asbestosis, such as might be the result or prior exposure to asbestos during his military service. And, in any event, as specifically concerning this mention of COPD, that was before he filed his claim for VA benefits in December 2005. Moreover, shortly thereafter, in September 2006, the evidence reflects explicitly that he had no pulmonary disorder. He therefore did not have a lung disorder when filing his claim. The record contains only one mention of COPD, and it was some two years before he filed his claim for VA benefits. Less than a year later, his lungs were found to be normal. It is equally significant that a May 2006 medical problem list generated before his lungs were found to be normal mentioned just acute pharyngitis and acute bronchitis, not also COPD. Because no restrictive lung disease was found only a few months after the Veteran filed his claim and because the evidence of his obstructive disease (namely, COPD) predated the claim by some two years and was not mentioned in subsequent medical problem lists, the Board finds that he did not suffer from a lung disorder, including one caused by exposure to asbestos during his military service, when he filed his claim of entitlement to service connection for a lung disorder, including as secondary to asbestos exposure. See Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). As the competent medical evidence stands, he does not suffer from a lung disorder, much less as a result or consequence of his military service and, in particular, from any exposure to asbestos during his service. The Board recognizes his lay assertions of a present lung disorder. But although lay persons are competent to provide opinions on some medical issues (e.g., "simple" medical conditions), see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), pulmonary disorders are medically complex, so fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Veteran's unsubstantiated lay assertions as to the presence of a pulmonary disorder do not constitute competent and credible evidence, so are not ultimately probative. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). Indeed, in this particular instance the Board did request a medical opinion on this determinative issue when remanding this claim in March 2011, and the VA compensation examiner explained that the symptoms of which the Veteran complains have been attributed to the unrelated conditions of chronic GERD and chronic allergic rhinitis. These conditions were not said to be the result of exposure to asbestos during the Veteran's service, and the VA examiner additionally determined the Veteran did not have any disease commonly associated with asbestos exposure. Because the Veteran does not have a present lung disorder, much less a result or consequence of his military service and, in particular, from exposure to asbestos, service connection for the claimed lung disorder must be denied because the preponderance of the evidence is unfavorable to this claim. 38 C.F.R. § 3.303; Shedden, supra; Brammer, supra. In this circumstance, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has challenged the initial disability rating assigned for is now service-connected bilateral hearing loss. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Id. at 126. The Court also since incidentally has extended this practice even to claims that do not involve initial ratings, but also established ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected bilateral hearing loss has been rated initially as 0-percent disabling, i.e., noncompensable, under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing range from 0 to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When a Veteran evidences an exceptional pattern of hearing impairment, such as when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa again is to be used, whichever results in the higher number. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). On VA examination in July 2006, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 45 50 36 LEFT 25 25 40 50 35 Speech recognition was 96 percent in the right ear and 100 percent in the left ear. These results correlate to Level I hearing loss bilaterally. An October 2006 audiogram revealed the following results: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 50 55 36 LEFT 15 15 40 50 30 Speech recognition was 96 percent bilaterally. These results also correlate to Level I hearing loss bilaterally. On VA examination in April 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 55 60 39 LEFT 25 25 40 55 36 Speech recognition was 94 percent on the right and 92 percent on the left. These results, as well, correlate to Level I hearing loss bilaterally. A May 2011 audiogram revealed the following results: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 55 60 39 LEFT 20 25 50 55 38 Speech recognition was 92 percent bilaterally. So, too, do these results correlate to Level I hearing loss bilaterally. In a June 2011 addendum to the April 2011 VA examination report, the examiner indicated that the functional impact of the Veteran's hearing loss included difficulty hearing in noisy environments. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In Martinak, the Court noted that, unlike the Rating Schedule for hearing loss, the extra-schedular provisions of 38 C.F.R. § 3.321(b)(1) did not rely exclusively on objective test results to determine whether referral for an extra-schedular rating was warranted. The Court held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See also Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007); and 38 C.F.R. § 4.10. An exceptional pattern of hearing loss has not been shown at any time, so Table VI (rather than Table VIa) has been used throughout this analysis to determine the numeric designation of hearing impairment. 38 C.F.R. §§ 4.85, 4.86. The Veteran has had Level I hearing loss in both ears throughout the appeal period, so at all times when examined. Applying Level I and Level I hearing loss to Table VII corresponds to a 0 percent disability rating. The fact that he has had essentially the same level of hearing loss (Level I) when repeatedly examined tends to suggest this is an accurate reflection of the amount of hearing loss he has. There have not been any inconsistencies or aberrations. And as already explained, the ratings for disability compensation for hearing loss are determined by the mechanical (meaning nondiscretionary) application of the criteria in Table VI and Table VII. Lendenmann, 3 Vet. App. at 349. The evidence, as it stands, indicates the Veteran's service-connected bilateral hearing loss has warranted no more than a 0-percent rating since the filing of his claim for this condition (effective date of the award). The Board resultantly cannot "stage" this rating since this represents his greatest level of impairment on account of this disability since receipt of this claim. Fenderson, 12 Vet. App. at 125. In addition to dictating objective test results, a VA audiologist as mentioned must fully describe the functional effects caused by a hearing loss disability in his her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the April 2011 examiner, in a June 2011 addendum, noted that the only functional impairment was difficulty hearing in noisy environments, which the schedular rating sufficiently contemplates. The Court also has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the Board finds that a derivative TDIU claim is not raised by the record or in any of the Veteran's pleadings or those of his representative. Specifically, the evidence of record fails to show that the Veteran is unemployable because of this service-connected disability, and the Veteran has not contended as much. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In considering whether extra-schedular consideration is warranted, the Board has attributed all symptoms potentially referable to the hearing loss and being due to this service-connected disability, rather than the result of a condition that is not a service-connected disability. See generally Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board has considered the Veteran's complaints of decreased auditory acuity and speech recognition impairment. But the schedular rating criteria contemplate the limitations and impairment caused by his service-connected hearing loss disability. Indeed, there are provisions already in place for when a Veteran has an exceptional pattern of hearing impairment, see again 38 C.F.R. § 4.86(a) and (b), so an alternative way of rating his hearing loss disability when it does not follow or comport to the traditional pattern. The bilateral hearing loss disability rating on appeal is not one that is rated by analogy, but, instead, has been evaluated under applicable Diagnostic Code 6100, the schedular rating criteria of which specifically provide for ratings based on all levels of hearing loss, including, again, even exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiologic testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. The fact that there may be occupational impact does not render the Rating Schedule inadequate to evaluate the level of disability. Because the schedular rating criteria are adequate to rate the Veteran's service-connected bilateral hearing loss, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim of entitlement to service connection for a lung disorder, including as secondary to asbestos exposure, is denied. Also denied is the claim for a compensable rating for the bilateral hearing loss. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs