Citation Nr: 1414422	
Decision Date: 04/02/14    Archive Date: 04/11/14

DOCKET NO.  11-02 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a respiratory disability, to include asbestosis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Hager, Counsel 


INTRODUCTION

The Veteran served on active duty from April 1943 to March 1946, and from April 1951 to August 1952.

This matter initially came before the Board on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In that decision, the RO denied entitlement to service connection for asbestosis.  For the reasons below, the Board has recharacterized the issue more broadly.

In September 2013, the Veteran testified at a videoconference hearing before the undersigned.  A transcript of that hearing is part of the Virtual VA claims file. 

In October 2013, the Board remanded the claim to the RO, via the Appeals Management Center (AMC).  For the reasons indicated below, the RO/AMC complied with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).  Further, this appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The preponderance of the evidence of record reflects that the Veteran has not had a respiratory disability during the pendency of the claim.

CONCLUSION OF LAW

A respiratory disability was not incurred or aggravated inservice.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in January 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in January 2014.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  In its October 2013 remand, the Board instructed that the RO request that the Veteran sign the necessary authorization for release of the private medical records referenced by the appellant during the Board hearing.  The RO/AMC sent a November 2013 letter to the Veteran requesting this information but the Veteran did not respond.  The RO/AMC therefore complied with the Board's remand instructions and was not required to take further action pursuant to its duty to assist.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. § 3.159(c)(1)(ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-Federal records, including providing authorization for release of records).  

The Board also instructed that the RO/AMC consider scheduling the Veteran for a new VA examination if there was medical evidence linking  a current respiratory disability to service.  As there was no such evidence, the RO/AMC did not schedule the Veteran for a VA examination and therefore complied with the Board's remand instructions in this regard as well.

Finally, during the September 2013 Board hearing, the undersigned explained the issue on appeal and suggested the submission of evidence that may have been overlooked.  These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

The Board will therefore proceed to the merits of the appeal.

Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

A necessary element for establishing a service connection claim is the existence of a current disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes).  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

The Veteran filed his service connection claim in this case in January 2010.  In this case, however, the claim must be denied because the preponderance of the evidence reflects that the Veteran has not had a respiratory disability at the time of his claim or during its pendency.

The Veteran indicated in his January 2010 claim that he had been exposed to asbestos during service and the RO denied entitlement to service connection for asbestosis.  The Board has recharacterized the issue more broadly in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  Clemons holds that what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim.

As to whether the Veteran has had a respiratory disability during the pendency of the claim, there are references to chronic obstructive pulmonary disease and asbestosis in the VA treatment records as well as notation of a history of these disorders.  For example, a June 2005 VA treatment note indicated that the Veteran reported a history of asbestosis and chronic obstructive pulmonary disease, and a January 2006 ambulatory care note indicated the Veteran complained of bilateral heel pain and other problems and noted a diagnosis of asbestosis combivent qid and prednisone to be used only when having difficulty breathing.  

There is also a December 2012 pulmonary function test report by a pulmonary care fellow that indicates that the testing met the ATS criteria for acceptability and reproducibility and that spirometry and lung volumes showed moderate restriction, diffusion capacity was moderately reduced and corrects to normal when adjusted for alveolar volume, and that this was consistent with interstitial lung disease.  An addendum to the report by a staff physician indicated that the interpretation was limited given the lack of acceptable ATS criteria, and that the lung volumes could appear to be lower than expected due to lack of the Veteran's ability to comply with testing maneuvers.

In contrast, a January 2013 VA examiner reviewed all of the evidence of record including the references to asbestosis and chronic obstructive pulmonary disease, as well as the December 2012 pulmonary function test.  That examiner noted that the January 2, 2013 chest X-ray showed "No definite pleural calcifications," and indicated that a CT scan had been ordered for January 18, 2013.  The examiner wrote, "The CT scan is very sensitive and specific in the diagnosis of diffuse interstitial lung disease.  Please see CT result for definitive diagnosis of asbestos exposure or asbestosis."  A January 3, 2013 examiner further specifically indicated that the appellant did not have a respiratory disorder.  A January 18, 2013 CT scan impression was, "No evidence of interstitial fibrosis, emphysematous changes or pleural calcifications."  Finally, a January 23, 2013 respiratory therapist did not diagnose a respiratory disorder and found that the appellant had an oxygen saturation level between 90 and 96 percent.

Given that the VA examiner indicated that the CT scan results would be the most definitive test and that test showed neither asbestosis nor any other respiratory disease, the fact that the December 2012 chest X-ray was questioned by the reviewing physician, and the fact that the other diagnosis were based on less thorough examinations which did not include radiographic studies, the Board finds the January 2013 VA examination report and CT scan to be more probative than diagnoses indicating respiratory disease or a history thereof.  The weight of the medical evidence therefore reflects that the Veteran did not have any respiratory disease during the pendency of the claim.

The Board has considered the Veteran's statements that his symptoms are due to a respiratory disorder.  While lay witnesses are competent to testify as to some medical matters, the Veteran's testimony as to the cause of his symptoms such as difficulty breathing is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  The Veteran's lay statements in this regard therefore are not competent and do not support the existence of a respiratory disorder during the pendency of the claim.

In reaching the above conclusions, the Board notes the Court's recent holding that "when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency."  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).  

Here there were multiple chest X-rays prior to the January 2010 filing of the claim in this case.  A December 2004 chest X-ray report indicated no failure infiltrate or acute disease seen, an April 2007 X-ray report indicated fibrosis in both lungs and some plate like atelectasis in the left lung base, and an August 2009 X-ray report indicated no evidence of acute infiltrate and no acute disease.  In this case, the Board is not applying a bright line rule as to diagnoses prior to the pendency of the claim.  The only radiographic diagnosis of respiratory disease was well before the claim was filed but, more importantly, the Board has considered the conflicting evidence regarding whether the Veteran has had a respiratory disease at any time since the filing of the claim.  For the reasons stated above, the Board finds that the most probative evidence shows a lack of respiratory disease.

As the preponderance of the evidence reflects an absence of a current disability with regard to the claim on appeal, the Veteran has failed to meet his burden of establishing this essential element of his claim.  See 38 U.S.C.A. § 5107(a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his benefits claim).  The preponderance of the evidence is thus against the claim for entitlement to service connection for a respiratory disability, to include asbestosis, the benefit of the doubt doctrine is therefore not for application, and the claim must be denied.  38 U.S.C.A. § 5107(b).
 


ORDER

Entitlement to service connection for a respiratory disability, to include asbestosis, is denied.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs