Citation Nr: 1715957 Decision Date: 05/11/17 Archive Date: 05/22/17 DOCKET NO. 15-38 800A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Evaluation of bilateral hearing loss disability, currently rated as 10 percent disabling. 2. Entitlement to service connection for an asbestos related lung disease, claimed as asbestosis and mesothelioma. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1951 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2013 rating decision prepared by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, for the St. Petersburg, Florida, RO. The Veteran's respiratory disability issue has been recharacterized as it appears on the cover page of instant decision, in order to afford the Veteran the broadest scope of review. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The issues of leukemia, skin cancer, and vertigo based on exposure to ionizing radiation have been raised by the record in a July 2014 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Throughout the appeal period, the evidence of record shows that the Veteran's bilateral hearing loss was manifested by no more than Level II hearing acuity in the right ear and no more than Level XI hearing acuity in the left ear. 2. The Veteran's service personnel records document his service aboard the USS Frontier and USS O'Brien as a machinist mate, fireman, and fireman apprentice, which are considered to have a probable to highly probable exposure to asbestos according to the Navy Job Titles (Ratings) and Probability of Asbestos Exposure chart. 3. The Veteran does not have an asbestos related lung disease, to include mesothelioma or asbestosis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2016). 2. The criteria for entitlement to service connection for an asbestos related lung disease, claimed as asbestosis and mesothelioma, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A VCAA letter dated in February 2013 fully satisfied the duty to notify provisions for the underlying service connection claim. See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran also raised a disagreement with the initial evaluations assigned following the grant of service connection for a bilateral hearing loss disability. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and 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). No additional discussion of the duty to notify is therefore required. VA has done everything reasonably possible to assist the Veteran with respect to his claims in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159 (c). All pertinent service and post-service treatment records have been associated with the claim file, including private treatment records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). VA examinations have been afforded the Veteran to ensure an accurate disability picture is available. With regards to the hearing loss, a September 2013 VA examiner included a description of the functional effects of the hearing disability in accordance with Martinak v. Nicholson, 21 Vet App. 447, 455 (2007). With regards to the service connection claim, the VA provided an examination in September 2013, as well as a follow-up opinion in June 2016 to resolve conflicting medical information in the record. The examiners have made all the required findings necessary for application of the rating schedule criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). I. Disability Rating - Bilateral Hearing Loss The Veteran seeks an initial rating in excess of 10 percent for his service-connected bilateral hearing loss. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, the Board finds that the disability picture has not significantly changed for the bilateral hearing loss disability during the appeal period and uniform ratings are warranted. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran was afforded a VA examination to evaluate his hearing loss disability during the appeal period. On the authorized audiological evaluation in September 2013, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 55 70 65 LEFT 80 80 75 85 90 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 58 decibels in the right ear and 83 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 96 percent for the right ear, and 12 percent for the left ear. Applying the test results, rounding up, of this VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear, and Level XI for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a 10 percent disability rating for the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Application of the regulation to the findings of the September 2013 audiometric evaluation results shows that the Veteran's hearing loss in the left ear for each of the four specified frequencies were 55 decibels or more. Therefore, an exceptional pattern of hearing impairment was shown in the left ear. Thus, findings on this examination warrant consideration under 38 C.F.R. § 4.86, which provides that the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. The Board notes that the outcome is the same whether Table VI or Table VIa are used. The Veteran's file also contains private audiograms from April 2013, July 2013, and May 2015. However, an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The private audiograms provide no indication that they were conducted by a state licensed audiologist. In addition, the audiograms do not indicate that they contain the results of a Maryland CNC speech discrimination test. Therefore, the results of this private testing cannot be used for purposes of applying the rating criteria. See 38 C.F.R. § 4.85. Nevertheless, the private medical records contain written evaluations of the Veteran's hearing status. The Board notes that evaluations from May 2015, June 2015, July 2015, and August 2015, each report that the Veteran's hearing loss symptoms were "unchanged." The Board has considered the lay statements provided by the Veteran. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran's hearing loss has reached a disability rating in excess of 10 percent level during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Considering the results of the VA examinations, entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss is denied. The Board acknowledges the Veteran's complaints of bilateral hearing loss requiring the use of hearing aids. The Veteran has stated he has difficulty understanding words and, in the case of his left ear, difficulty even when wearing hearing aids. He also claims that he only has about 60% of his hearing in his right ear. In the examination in September 2013, the VA examiner described the functional effects caused by the Veteran's hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The examiner noted that the Veteran experiences functional impairments that impact the ordinary conditions of daily life, including the ability to work. Again, the Veteran described being unable to understand in his left ear, even with the use of hearing aids. He reported: My hearing has slowly diminished. It keeps getting worse and worse over the years . . . I don't understand a lot of words. I have to wear hearing aids in both ears. In the left ear, even with my hearing aids, I can't understand. In my right ear, I only have like 60% of my hearing. Regardless of whether this satisfies the requirement in Martinak, the Veteran must demonstrate prejudice due to any examination deficiency, which he has not done in the instant case. Id. The Veteran's statements are competent evidence as to which he has personal knowledge, such as difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Nevertheless, as a layperson, without the appropriate medical training and expertise, his statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for puretone thresholds. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture due to his bilateral hearing loss is not so unusual or exceptional in nature as to render the assigned ratings inadequate. The Veteran's service-connected bilateral hearing loss is evaluated as impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. The evidence of record shows that the Veteran's bilateral hearing loss has been manifested by no more than Level II for the right ear, and Level XI for the left ear. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the disability rating currently assigned. Evaluations in excess thereof are provided for certain manifestations of bilateral hearing impairment, but the medical evidence demonstrates that those manifestations are not present in this case. The Board has considered the Veteran's bilateral hearing loss under the provisions for exceptional patterns of hearing impairment for the left ear, however, even when considered as such, he did not qualify for a higher rating. The record shows the Veteran has been wearing hearing aids for his hearing loss; however, this is not a factor in the evaluation of hearing impairment. 38 C.F.R. § 4.85. The Veteran's claim hinges on a mechanical application of specifically defined regulatory standards. The Veteran's hearing difficulties are, however, contemplated by the Rating Schedule. Notably, 38 C.F.R. § 4.85 contemplates any functional loss due to hearing impairment. Accordingly, the 10 percent disability rating assigned throughout the appeal reasonably describes the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected bilateral hearing loss, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected bilateral hearing loss varied to such an extent that a compensable evaluation would be warranted. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to his service-connected bilateral hearing loss. Therefore, the question of entitlement to a total disability rating based on individual unemployability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Service Connection - Mesothelioma The Veteran has claimed entitlement to service connection for an asbestos related lung disease, claimed as asbestosis and mesothelioma. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service personnel records document his service aboard the USS Frontier and USS O'Brien as a machinist mate, fireman, and fireman apprentice, which are considered to have a probable to highly probable exposure to asbestos according to the Navy Job Titles (Ratings) and Probability of Asbestos Exposure chart. M21-1MR Part IV.ii.1.I.3.c. The Veteran has also submitted unofficial Internet records of asbestos risk aboard both vessels. Therefore, the Board will concede exposure to asbestos in service. The Veteran's file contains a chest x-ray report from a private physician in February 1992. This report documents changes in the Veteran's heart and lungs which the report concluded "are consistent with the diagnosis of asbestosis and asbestos related pleural disease." In May 1993, the same private physician provided an evaluation report regarding a pulmonary consultation in relation to the Veteran's asbestos exposure. According to that report, the Veteran - fifty-eight years old at the time - reported some shortness of breath while running, but otherwise felt fine. The report noted that the Veteran used tobacco and smoked one pack a day from age eighteen to age thirty eight, but stopped twenty years ago. Regarding pulmonary function studies the report noted: Spirometry reveals Forced Vital Capacity is normal, FEV1 is normal, FE1/FVC Ratio is normal, MVV is mildly decreased. Vital Capacity is normal, Total Lung Capacity is normal, Residual Volume and Functional Residual Capacity are normal. Diffusing Capacity is normal. The physician's impression was "normal pulmonary function studies." In addition, regarding a posterioranterior and lateral chest x-ray, the physician stated: Reveals normal soft tissue and bony structures. The cardiac silhouette is nor [sic] enlarged. The lung fields have a mild increase in interstitial markings. ILO profusion is 1/0. The diaphragms are unremarkable. There is right sided pleural thickening seen. The record reflects another private chest examination from March 2013. The Veteran was admitted due to dizziness. A single view of the chest revealed the following: ...subsegmental plates of atelectasis at the right lung base. Lungs are otherwise clear. Pulmonary vascularity is unremarkable. The cardiac silhouette is accentuated by shallow inspiration. There is mild blunting of the left costophrenic angle which also may be related to shallow inspiration. The private physician's impression was that the "slight increased density at the right base [is] likely related to subsegmental plates of atelectasis demonstrated. Cardiac silhouette is accentuated by shallow inspiration." A private examination of a posterioranterior and lateral chest x-ray made the following findings: "Heart shadow is upper limits of normal size. Hypoventilatory changes are seen at the lung bases. No definite infiltrates, effusions or pneumothoraces can be identified." The physician's impression was that there was hypoventilatory subsegmental atelectasis at the lung bases. The Veteran was afforded a VA examination in September 2013, in which he reported that over the past few years, he has experienced increasing difficulty breathing, which he believes is related to mesothelioma and asbestos exposure while in service. The examination included the results of a pulmonary function test, which found that forced expiration is normal with no evidence of obstructive or suggestion of a restrictive ventilator defect. In addition, the flow-volume loop showed a normal inspiratory and expiratory flow pattern and measurement of lung volumes by plethysmography show no evidence of a restrictive defect or hyperinflation. Finally, the single breath DLCO measurement shows no diffusion abnormality, while the pulse oximetry at rest, on room air reveals mild hypoxemia (SaO2 94%). In the final analysis, the examiner opined: There are no prior work up or diagnostic studies to confirm the diagmosis [sic] of mesothelioma such as imaging scans or biopsies. Veteran's presenting symptom of increasing shortness of brath [sic] can imply a number of other diseases and there is no evidence mesothelioma is the casue [sic] of this at the present time. In order to address seemingly conflicting evidence, specifically the February 1992 diagnosis of asbestosis and noted pleural plaques versus the September 2013 examination which noted no diagnosis of mesothelioma (also claimed as asbestosis), the VA obtained an additional medical opinion in June 2016. In the June 2016 opinion, the VA examiner reviewed the Veteran's service treatment, VA treatment, including the September 2013 VA examination opinion, and private sector medical records, including the February 1992, May 1993, and March 2013 chest examination reports. The examiner also looked at medical literature, which states that pathologically, asbestosis requires that both pulmonary fibrosis of a particular pattern and evidence of excess asbestos in the lungs must be present. In addition, the disease progresses slowly, with a latent period of more than 20 years from first exposure to onset of symptoms and chest imaging usually documents its presence. The examiner opined that it is less likely than not (less than 50 percent) for the Veteran to have the diagnosis of mesothelioma (also claimed as asbestosis) at this time. Specifically, the examiner reasoned: The initial impression of Dr. Krainson in May, 1993 was that the veteran had pulmonary asbestosis and an asbestos related pleural disease based on the evidence at hand. These are conditions that are both chronic and progressive in nature. However as later chest x-ray studies twenty years later have not shown that the [V]eteran has diffuse pulmonary fibrosis or the presence of pleural plaques. Such features would have been easily recognizable to the reviewing radiologist and quite marked in that period of time. Additionally the characteristic pattern of pulmonary asbestosis is that of a restrictive ventilatory defect with a decreased value of the diffusion capacity. The most recent pulmonary function test study in September, 2013 does not show these characteristic signs which would be expected by this time if the [V]eteran had pulmonary asbestosis. While exposure to asbestos in service has been conceded, the evidence fails to show that there is a diagnosis of an asbestos related lung disease, to include asbestosis or mesothelioma at any point during the appeal period. The Board finds more probative the statements of the VA examiner in the June 2016 medical opinion, which provided a thorough analysis of the evidence of record, to be the most probative medical opinion of record. This opinion explains that a disability such as the one the Veteran was diagnosed with in 1992 is both chronic and progressive, and thus would be quite marked by this point in time. However, the Veteran's more recent tests do not show characteristics of the claimed disability. Therefore, upon consideration of the above, the Board finds that there is no diagnosis of an asbestos related lung disease. The Board acknowledges that the Veteran is competent to report observable symptoms, including respiratory problems and difficulty breathing. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that the Veteran's lay statements assert diagnoses of an asbestos related lung disease like asbestosis or mesothelioma, which are related to his active service, such statements are of little probative value, as such diagnoses and nexus opinions require medical expertise which the Veteran is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, in the absence of probative evidence which establishes an asbestos related lung disease, to include mesothelioma or asbestosis, a finding of service connection cannot be granted. As such, the preponderance of evidence weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss disability, is denied. Entitlement to service connection for an asbestos related lung disease, claimed as asbestosis and mesothelioma, is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs