Citation Nr: 1341432 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-24 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a pulmonary disability claimed as asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from January 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran offered testimony at a hearing before the undersigned Veterans Law Judge in May 2011. A transcript of this hearing is in the claims folder. Concerning the hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim currently on appeal. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). In December 2012, this matter was remanded by the Board for additional development. This having been completed, the matter has been returned to the Board for further review. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. FINDING OF FACT The medical evidence does not indicate that the Veteran has a pulmonary disability, to include asbestosis, that had its onset in service, within one year of service, nor is such disability otherwise a result of active military service. CONCLUSION OF LAW The criteria for an award of service connection for a pulmonary disability, to include asbestosis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. In a December 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. In December 2012, this matter was remanded by the Board for additional development. Specifically, the Board requested that a December 2009 x-ray report be obtained, along with updated VA treatment records pertaining to the Veteran's claimed pulmonary disability. The Veteran was also to be afforded a VA pulmonary examination. Upon remand, the x-ray in question was obtained. Updated VA treatment records were also obtained. Finally, the Veteran was afforded a VA examination that complied with the directives set forth in the December 2012 remand. Specifically, the VA examiner, after examining the Veteran and his claims file, found that the Veteran did not have a diagnosed respiratory disability, to include a disability cause by or related to asbestos exposure. The examiner indicated that, while the Veteran had complaints of shortness of breath and a cough, his PFTs were normal. As such, the Board finds that there was substantial compliance with the terms of the December 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 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); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (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 claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant 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 evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he has developed asbestosis as a result of active service. He testified that while in service, he worked in the boiler room of two different aircraft carriers. He states that asbestos was commonly used as insulation in the engine rooms and other parts of the ship, and believes that he was exposed to asbestos particles while aboard these ships. The record confirms that the Veteran served aboard two aircraft carriers, and also shows that his occupational specialty was an electrical repairman. In view of the Veteran's records and his testimony, the Board finds that there is credible evidence of a potential in-service injury by means of asbestos exposure. The Board notes, however, that mere exposure to asbestos is not a disability. The Veteran must still demonstrate that he has a current disability that is the result of the exposure before service connection can be established. As the available evidence did not yet contain a current diagnosis of asbestosis or any other chronic pulmonary disability, the Board in December 2012 remanded this matter for further development, to include a VA examination. In this regard, the Veteran testified that he has experienced chronic shortness of breath for at least the past two years. The Veteran was afforded a VA examination dated in March 2013. The examiner indicated that the claims file had been reviewed in connection with the examination and report. The Veteran was found to have no pulmonary disabilities, including disabilities related to asbestos exposure. The Veteran reported shortness of breath and a cough. He also indicated that he had a difficult time clearing his throat. He had smoked in the past, but quit in 1990. The examiner indicated that the Veteran worked on boilers in the Navy. He denied bloody sputum. X-rays indicated no acute cardiopulmonary disease and no significant interval changes. The examiner indicated that the Veteran was winded while walking and that he needed to take frequent breaks. After examination, the examiner stated that the claimed disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In explanation, the examiner stated that the Veteran does not have a diagnosis of asbestosis or respiratory condition associated with asbestos exposure. In addition, the Veteran's PFTs were normal. The Board has reviewed the Veteran's outpatient treatment records as well. A December 2009 chest x-ray showed clear lungs with no infiltrate or masses. The impression was no acute findings. A review of other VA treatment records, including the electronic records, did not indicate findings of a respiratory disability linked to the Veteran's military service. Based on the foregoing, the Board finds that entitlement to service connection for a pulmonary disability, to include as a result of asbestos exposure, is not warranted in this case. Here, despite complaints of shortness of breath and cough, the Veteran has been not been diagnosed with a respiratory condition. And, as noted above, the existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service is not enough. There must be a disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In determining the weight assigned to this evidence, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the opinions of the VA December 2012 examiner are highly probative, based as they were on examinations of the Veteran and his claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The medical evidence in this case does not indicate a current disability associated with military service. In addition, the Board notes that the Veteran has contended on his own behalf that his claimed disability is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Specifically, in Jandreau, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Similarly, the Court has held that 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of a respiratory disorder is a complex medical question, beyond the competency of a layperson. Moreover, none of the circumstances set forth under Jandreau are applicable, and as such the lay evidence cannot establish a diagnosis here. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claim. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a pulmonary disability, to include asbestosis, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs