Citation Nr: 1325017 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-07 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for shortness of breath, to include claimed as due to in-service asbestos exposure. 4. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1980 to February 1982. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied service connection for bilateral hearing loss, tinnitus, shortness of breath, and depression. The Veteran testified at the RO before a Hearing Officer in June 2010. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's hearing impairment does not meet the criteria for hearing loss disability for VA compensation purposes. 2. The Veteran has a current disability of bilateral tinnitus. 3. The Veteran was exposed to loud noises (acoustic trauma) during service. 4. Currently diagnosed tinnitus is not etiologically related to service, to include exposure to loud noises in service. 5. The Veteran has current disability of chronic obstructive pulmonary disease (COPD) and a history of bronchitis. 6. The Veteran was not exposed to asbestos during service. 7. The Veteran's COPD and bronchitis are not etiologically related to service. 8. The Veteran has currently diagnosed depression. 9. The Veteran did not sustain a psychiatric injury or disease, to include symptoms of depression, in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for service connection for shortness of breath, to include as claimed due to in-service asbestos exposure, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for service connection for depression have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 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), 3.159, 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 timely June 2007 and December 2007 letters, the RO provided preadjudication notice to the Veteran regarding what information and evidence is needed to substantiate claims for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. The notice included provisions for disability ratings and for the effective date of the claim. The RO provided the Veteran with an asbestos questionnaire as part of the June 2007 notice letter. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA audiological examination in January 2008. 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 that the VA opinion and findings obtained in this case are adequate, as the opinion is predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinion considered all of the pertinent evidence of record, to include service treatment records, VA treatment records, and the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues of bilateral hearing loss and tinnitus has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to the issues of service connection for shortness of breath, to include as claimed due to in-service asbestos exposure and service connection for depression; however, the Board finds that VA examinations are not necessary in order to decide these claims. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Veteran's service treatment records do not reflect complaints, findings, or diagnoses of shortness of breath, pulmonary disorders, depression, or evidence of any such symptoms in service. For the reasons explained in this decision, the Board finds that there is otherwise no credible evidence of any in-service asbestos exposure, or psychiatric or pulmonary disease, injury, or event. Because there is no in-service event, injury, or disease to which competent medical opinion could relate a current pulmonary disorder or depression, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). For these reasons, the Board finds that the competent medical evidence that is of record is adequate to make a decision on the issues of service connection for shortness of breath, to include as claimed due to in-service asbestos exposure, and service connection for depression. 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, a VA audiological examination report, post-service VA treatment records, the June 2010 RO hearing transcript, and the Veteran's statements. Regarding private treatment records, the RO sent a letter to the Veteran in July 2009 notifying him that the information he had provided on the Authorization and Consent Release of Information form was incomplete. The RO requested that the Veteran provide additional information in order to properly request the information from his private medical providers; however, to date the Veteran has not submitted the requested information. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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 condition of sensorineural hearing loss is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions at 38 C.F.R. § 3.303(b) apply to that disorder. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus, shortness of breath, and depression are not chronic diseases under 38 C.F.R. § 3.309(a), and should be adjudicated using the general principles of direct 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 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"). 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). Service Connection for Bilateral Hearing Loss The Veteran contends that he was exposed to loud noises during service while on the USS Forrestal in the ship's engine room. See January 2007 claim for VA compensation and June 2010 RO hearing transcript at pg. 2. Specifically, he stated that there were loud noises in the engineering spaces of the ship and that he was working underneath where flight operations and catapults were being performed. The Veteran also testified that he was exposed to some acoustic trauma after service separation while working as a mason, which included exposure to noise from saws and other construction equipment. According to the Veteran, the January 2008 VA audiological examination is the only evaluation he has undergone regarding his hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that a veteran may establish the required nexus between current hearing loss disability and his term of military service if he can show by competent evidence that his hearing loss disability resulted from the in-service acoustic trauma. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). On the question of current disability, the Board finds that the Veteran does not have a bilateral sensorineural hearing loss "disability" according to VA disability compensation regulation 38 C.F.R. § 3.385. In January 2008, on VA audiological examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 15, 15, 10, 20, and 20, respectively, with an average puretone threshold of 16.25 decibels. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 15, 5, 15, and 15 decibels, respectively, with an average puretone threshold of 12.58 decibels. Speech discrimination was 100 percent bilaterally. As the bilateral auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is not 40 decibels or greater, the thresholds for at least three of these frequencies are not 26 or greater, and the speech recognition score using the Maryland CNC Test was not less than 94 percent, the criteria for current bilateral hearing loss "disability" have not yet been met as required by 38 C.F.R. § 3.385. Because the evidence does not show that the Veteran's bilateral hearing loss is to a disabling degree according to 38 C.F.R. § 3.385, the weight of the evidence demonstrates that the Veteran's hearing loss has not met the threshold to establish current hearing loss "disability," and the claim must be denied. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Because the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Tinnitus The Veteran contends that he experienced ringing in his ears during service and since service separation. See June 2010 RO hearing transcript at pg. 2 and January 2008 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 2007 claim for VA compensation, the January 2008 VA audiological examination, and the June 2010 RO hearing transcript, the Board finds that the Veteran has a current disability of tinnitus. On the question of in-service injury or disease, the Board finds that the evidence is in equipoise as to whether the Veteran was exposed to acoustic trauma in service. Initially, 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). Further, during the June 2010 RO hearing, the Veteran stated that he experienced loud noises in engineering spaces on the USS Forrestal. The Veteran stated that he did not wear hearing protection and he specifically noticed the ringing in his ears when he would lay down to rest. He also testified that he was in the "light shop" underneath flight operations and catapults which resulted in loud noises. Moreover, according to the DD Form 214, the Veteran's military occupational specialty was electricians mate. 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 electricians mate as "moderate." For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran was exposed to loud noise during service. The remaining question is whether there is a nexus or relationship between the Veteran's tinnitus and service, specifically the in-service noise exposure. The Board finds that a review of service treatment records reveals no complaint, or diagnosis of tinnitus. The Board finds that this evidence weighs against a finding that tinnitus was incurred in or is otherwise related to service. Further, at the time of the January 2008 VA audiological examination, the Veteran reported to the VA examiner that the onset of his tinnitus was approximately 20 years ago (i.e., 1988), over five years after service separation. The Veteran also reported, both in the January 2008 VA examination and at the June 2010 RO hearing, that he was exposed to occupational noise after service separation while working as a mason. Upon interviewing the Veteran, reviewing the claims file, and conducting an audiological examination, the January 2008 VA examiner opined that the Veteran's tinnitus was less likely as not due to noise exposure in service. In support of this opinion, the January 2008 VA examiner stated that the Veteran reported the onset of tinnitus about 20 years ago with no specific reference given to acoustic trauma while in service. The VA examiner further noted that the Veteran did not report tinnitus in any other medical examination at VA or in service. Upon review of all the evidence of record, both lay and medical, the Board finds that the January 2008 VA examination report to be the most probative evidence as to whether tinnitus was incurred in or is otherwise related to service. As discussed above, the January 2008 VA audiologist noted that the opinion rendered was based on a review of the claims file and the Veteran's statements. Further, the January 2008 VA examiner performed audiometric testing. The VA examiner opined that the Veteran's tinnitus was not related to service and 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). The Board further finds that post-service VA treatment records are negative for any complaints, findings, or diagnosis of tinnitus. This evidence further weighs against a finding that the Veteran's currently diagnosed tinnitus was incurred in or is otherwise related to service. For these reasons, the Board finds that tinnitus was not incurred in and is not etiologically related to service. Accordingly, service connection for tinnitus is not warranted. Service Connection for Shortness of Breath 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 providing the Veteran an asbestos questionnaire in June 2007. During the June 2010 RO hearing, the Veteran testified that he believed smoking was a contributing factor to his shortness of breath and stated that his VA doctors had encouraged him to quit smoking cigarettes. The Veteran also maintained that he was exposed to asbestos while working on the USS Forrestal on overheads and lighting equipment. The Veteran testified that he had not been diagnosed with asbestosis. At the outset, the Board finds that the only pulmonary disorder that the Veteran has been diagnosed with is COPD and a history of bronchitis. See VA treatment record dated July 2010. He has not been diagnosed with asbestosis, which is "a pneumoconiosis due to asbestos particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). "The only known cause of asbestos or mesothelioma . . . is exposure to asbestos." 59 Federal Register 42498 (August 18, 1994). Next, the Board finds that the Veteran was not exposed to asbestos during service. 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). That notwithstanding, the Board finds that the Veteran's statements are not credible and are outweighed by other evidence of record. Specifically, an October 1981 in-service Asbestos Medical Surveillance Program report reveals that, when directly asked if he had worked with asbestos, both prior to and during his military career, the Veteran answered "NO." Moreover, upon review of the evidence of record, VA treatment notes are silent as to asbestos exposure. The Board finds the more contemporaneous October 1981 in-service asbestos exposure report to be of greater probative weight than the Veteran's statements made recently pursuant to his VA compensation claim. For these reasons, the Board finds that the Veteran was not exposed to asbestos in service. Further, the Board finds that the evidence of record does not demonstrate that the Veteran had an in-service injury or disease relating to a pulmonary disorder or shortness of breath. In this regard, service treatment records are negative for any type of pulmonary disorder, and the chest and lungs were found to be normal at the service separation examination in February 1982. Aside from the purported in-service asbestos exposure, which the Board has found not credible, the Veteran has not asserted any other in-service injury or disease associated with his shortness of breath. The Board next finds that the Veteran's COPD and bronchitis is not etiologically related to service. A July 2010 VA treatment note reveals that the Veteran was prescribed smoking cessation patches for his COPD. This suggests tot the Board that currently diagnosed COPD is a result of the Veteran's tobacco abuse, and not to an in-service injury, disease, or event. In this regard, the Veteran himself has claimed that he has been encouraged to quit smoking cigarettes and admitted that he believed his tobacco abuse was a contributing factor to his shortness of breath symptoms. The Board finds that the Veteran's long history of tobacco abuse is one factor that weighs against the Veteran's claim; specifically, it tends to show that currently diagnosed COPD is a result of cigarette smoking and not due to service. The Board acknowledges that the Veteran has not been afforded a VA examination in regard to the claim for service connection for shortness of breath, to include as claimed due to in-service asbestos exposure. In this regard, the Board finds that a VA medical examination is not required. For the reasons discussed above, the competent and probative evidence of record does not demonstrate that the Veteran was exposed to asbestos and does not demonstrate that any other event, injury, or disease occurred in service. Also, the competent and credible evidence of record does not demonstrate that currently diagnosed COPD or bronchitis is 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 shortness of breath, to include as claimed due to 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; 38 C.F.R. § 3.102. Service Connection for Depression The Veteran contends that currently diagnosed depression has existed since service and that he has persistently suffered from depression symptoms since that time. The Veteran also stated that he would self-medicate with alcohol in order to cope with depressive symptoms during and after service. After reviewing of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that currently diagnosed depression was not incurred in and is not otherwise related to service. The Board finds that VA treatment records reveal that the Veteran has currently diagnosed depression; however, the Veteran did not sustain an injury or disease which can be related to a psychiatric disorder in service, nor did he exhibit symptoms of depression in service. In this regard, service treatment records are negative for any complaints, treatment, or diagnosis of a psychiatric disorder. Further, the February 1982 service separation examination report made no mention of a psychiatric disorder, to include symptoms of depression. Further, the Board has reviewed all the evidence of record and finds that the Veteran's statements have been inconsistent, and, therefore, not credible. For example, during the June 2010 RO hearing, the Veteran stated that he was depressed during service and first sought treatment for depression in 1988, six years after service separation. However, in a January 2008 VA treatment note, the Veteran reported treatment for attention deficit disorder and depression since approximately 1995, 13 years after service separation. Moreover, VA treatment records dated June 2007 reveal that the Veteran had been sober for one year and, in a later July 2010 VA treatment note, the Veteran reported that his depression increased after he surpassed 10 to 12 months of sobriety (i.e., approximately 2006), 25 years after service separation. In the July 2010 VA treatment note the Veteran also stated that he could not think of anything that triggered his depression. Notably, VA treatment notes of record do not demonstrate that either the Veteran or VA psychiatrists have related the Veteran's currently diagnosed depression to service. The Board finds that the history reported by the Veteran at the time of VA treatment outweighs his more recent assertions of in-service onset or worsening of depression, as the statements made to VA health professionals are more contemporaneous, were made for treatment purposes (rather than the more recent statements for compensation purposes), and are more consistent with the accurate facts that include no notation of symptoms of depression during service. For these reasons, the Board finds that the evidence of record, both lay and medical, demonstrates that the Veteran did not sustain an in-service injury or disease relevant to the depression. As there is no in-service injury or disease to which to relate the current psychiatric disorder, the question of relationship (nexus) to service is not even reached in this case. Bardwell, 24 Vet. App. at 40 (upholding denial of service connection where the evidence has failed to establish an in-service injury, disease, or event). Accordingly, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for depression, 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. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for shortness of breath, to include as due to in-service asbestos exposure is denied. Service connection for depression is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs