Citation Nr: 1330799 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-31 064A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for asthma, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Nancy Lavranchuk, Agent ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals additional VA treatment records dated from February 2007 to June 2013 that are not duplicative of documents in the paper claims file. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The available evidence demonstrates that the Veteran has a current diagnosis of a mild obstructive lung disorder and has been treated for persistent asthma since August 2004. 3. The Veteran cancelled two VA examinations scheduled by the RO. 4. There has been no demonstration by competent medical evidence, or competent and credible lay evidence, that the Veteran's current lung condition is related to service. CONCLUSION OF LAW Service connection for asthma, to include as due to asbestos exposure, is not warranted. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be provided to the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by a letter dated in June 2010. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the RO arranged for VA examinations in June 2012 and July 2013. Notice was provided to the Veteran about the date and time for both examinations. However, he called to cancel both examinations. VA notified the Veteran of the need for a VA examination in October 2012. The letter indicated that the "examinations were requested to provide a physical assessment of the conditions that were identified...as necessary to support your claim for benefits." The Veteran called and indicated that he did not want to have the examination at VAMC East Orange. The Board notes that the Veteran has received extensive treatment at VAMC East Orange. The RO then issued a statement of the case denying the claim. The Veteran's agent requested an examination be rescheduled in November 2012. A second VA examination was scheduled for July 2013. The Veteran was again notified by letter of the examination time and location. However, the Veteran called and cancelled. The note memorializing the phone call to VA indicates that the Veteran said he already had an examination in January and was not going to come for another examination. The RO issued a supplemental statement of the case denying the claim. The January "examination" the Veteran was referencing in the telephone call was a pulmonary test conducted at VAMC East Orange that provided a diagnosis of mild obstructive lung disorder. However, the results of that test provide no medical opinion on the etiology of the Veteran's lung condition. Given that the Veteran has reported for prior appointments at VAMC East Orange and in light of the fact that it is clear from the record that the Veteran received notice of the date and time of his VA examinations, the Board finds that the Veteran need not be given another opportunity to report for a VA examination to determine the etiology of his claimed lung condition. The duty to assist is not always a one-way street. The Veteran cannot passively wait for help in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that all attempts to develop the relevant facts have been properly and sufficiently exhausted. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). II. Service Connection Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In rendering a decision on appeal, 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 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). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). III. Analysis The Veteran is seeking service connection for asthma that he claims resulted from exposure to asbestos during service. The Veteran's DD-214 documents that the Veteran was an electrical repairman in the Navy. While there is a chance he was exposed to asbestos, the Board finds that service connection is not warranted. In determining the issue presented, the Board considered the following pieces of evidence: service treatment records, private treatment records, and VA treatment records. Each will be discussed in turn. The service treatment records are negative for complaints, treatment, or diagnosis of any lung related problems, to include asthma. The Veteran underwent an exit examination in December 1969. At that examination, a clinical evaluation of the lungs and chest resulted in normal findings. There is no competent evidence that the Veteran suffered from asthma during service. The Veteran asserted in a statement dated in June 2013 that he has been treated for asthma ever since his discharge from service. However, in his response to the June 2010 notice letter, he identified only one private treating health care provider. The records associated with the file are dated from August 2004, over 30 years after service. They document that the Veteran has been treated for asthma. Significantly, however, no opinion on the etiology of the Veteran's asthma is provided in those records. There is no discussion or opinion detailing the history of the Veteran's condition that indicates the asthma is related to service. In November 2012, the Veteran submitted a letter dated in November 2011 from the same private healthcare provider. The healthcare provider offered a short opinion: "I have been treating [the Veteran] for the past 13 years. He has been treated for severe persistent asthma that has been difficult to treat. It is at least as likely as not, that [the Veteran's] illness is related to [his] military service." The Board notes that an opinion without a rationale is insufficient. Most of the "probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion offered by the private healthcare provider is insufficient and does not have any probative weight because it lacks a rationale. The claims file contains a VA treatment record dated in January 2013 that shows the results of a pulmonary function test. There is a notation that the Veteran has mild obstructive lung disorder. The Virtual VA file contains VA treatment records dated from February 2007 to June 2013. The January 2013 pulmonary consult is also in the Virtual VA file. There are also records of the Veteran taking various medications for asthma. However, the VA treatment records are negative for any etiology on the Veteran's asthma. There is no medical opinion on the history or cause of the Veteran's lung condition. As discussed above, the Veteran cancelled two VA examinations. He was properly informed of the time and location of both examinations. He was also informed of the reason why an examination was necessary. The Veteran provided lay statements in support of his claim. As discussed above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent to provide a medical diagnosis and medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). He asserts that his asthma has been treated since service. However, he only provided information regarding private treatment dating back to August 2004, more than 30 years after service. There is no competent medical evidence in the file to support the Veteran's contention that he has suffered from asthma since service. In light of the lack of other medical evidence and his refusal to report for an examination, the Board does not find the Veteran's assertion credible. Further, the Board notes that there is no adequately supported medical evidence in the claims file providing an opinion on the etiology of the Veteran's lung condition. An examination was needed to determine whether the Veteran's current condition is related to service. However, the Veteran cancelled two examinations. His contention that the January 2013 pulmonary test is enough is not accurate. As was explained in the letters notifying the Veteran of the time and location of the examinations, an examination and a medical opinion are required in this case. There is no evidentiary basis in the claims file upon which to base service connection. Accordingly, the preponderance of the evidence is against the claim. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for asthma, to include as due to asbestos exposure, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs