Citation Nr: 1528618 Decision Date: 07/02/15 Archive Date: 07/15/15 DOCKET NO. 14-37 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a disability due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran had active service from January 1960 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision of the Department of Veterans Affairs (VA) Louisville, Kentucky, Regional Office (RO). After the statement of the case (SOC) was issued in August 2014, additional evidence consisting of an October 2013 report of private chest X-ray study was added to the record (without Agency of Original Jurisdiction (AOJ) consideration or a waiver of such). However, as the newly received evidence is duplicative of records already considered (i.e., shows no pulmonary abnormality), the Board can proceed without seeking waiver of AOJ initial review of such evidence. 38 C.F.R. § 20.1304. FINDING OF FACT It is not shown that the Veteran has, or during the pendency of this claim has had, asbestosis or an asbestos exposure-related disease. CONCLUSION OF LAW Service connection for asbestosis/an asbestos exposure-related disease is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. §§ 5103, 5103A; 38 C.F.R. § 3.159. The duty to notify was satisfied by a March 2013 letter, prior to the initial adjudication of this claim. As to VA's duty to assist, pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been associated with the claims folder. 38 U.S.C.A. § 5103A. The RO did not arrange for a VA examination/opinion as to the claim of service connection for asbestosis. There is no competent evidence in the record to suggest that the Veteran has had a disability due to asbestos exposure, including asbestosis, during the appeal period. Absent an indication of a current disability which may be associated with the Veteran's service, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 79 (2006), is not met. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disorder, there must be evidence of (1) a current disability; (2) of incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). 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 layperson. 38 C.F.R. § 3.159(a)(2). The Veteran claims service connection for asbestos exposure-related disease on the basis that he was exposed to asbestos during active service, including while serving onboard the USS Sam Houston in January 1961 while it was being built. It is claimed that the Veteran observed asbestos being applied to steam, water and other pipes on the ship. As a preliminary matter, the Board notes that there is no specific statutory or regulatory guidance with regard to claims of service connection for asbestosis or other asbestos-related diseases. VA has issued guidelines for considering asbestos compensation claims. VA Adjudication Procedure Manual, M21-1MR, part IV.ii.2.C.9. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze claims of service connection for asbestosis or asbestos-related disabilities under the administrative protocols established by these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993). In Dyment v. West, 13 Vet. App. 141, 145, the Court found that provisions in former paragraph 7.68 of VBA Manual M21- 1, Part VI (the predecessor to the current M21-1MR asbestos guidelines), did not create a presumption of exposure to asbestos. Rather, medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See also VA O.G.C. Prec. Op. No. 04-00. The Board has carefully considered the record on appeal in light of these guidelines and the applicable legal criteria. Questions regarding his actual exposure to asbestos during active service notwithstanding, the record on appeal contains no probative evidence that the appellant currently has asbestosis or has ever had asbestosis or an asbestos-exposure related disease for any period of the claim. The record contains a VA treatment records which are silent with respect to respiratory complaints or lung impairment. There is no probative evidence that the appellant currently has asbestosis or an asbestos-exposure related disease. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In this case, the Board has carefully reviewed the record, but finds no probative evidence of a diagnosis of asbestosis or an asbestos-exposure related disease for any period of the claim. Although the appellant is competent to describe his symptoms, as the record does not establish that he possesses a recognized degree of medical knowledge, he lacks the competency to provide evidence that requires specialized knowledge, skill, experience, training or education, such as a diagnosis of asbestosis or asbestos-exposure related disease. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for a disability due to asbestos exposure. The benefit-of-the-doubt doctrine is not for application where the clear weight of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a disability due to asbestos exposure is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs