Citation Nr: 1621639 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 09-45 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a respiratory disorder due to asbestos exposure, other than pleural plaques. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service from June 1968 to May 1972, and March 1982 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this issue in September 2011, December 2012, and January 2014. In August 2012, the RO granted the issue of entitlement to service connection for pleural plaques, a residual of asbestos exposure. Therefore the issue on the title page has been recharacterized as shown to reflect the issue currently in appellate status. In June 2011 the Veteran testified via videoconference before a Veterans Law Judge (VLJ) no longer at the Board. The Veteran elected to have another hearing and he testified before the undersigned VLJ via videoconference in March 2013. Transcripts of both hearings were prepared and added to the record. FINDING OF FACT The probative, competent evidence is against a finding that the Veteran has a respiratory disorder due to asbestos exposure other than pleural plaques. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder due to asbestos exposure, other than pleural plaques, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements also require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). Compliant notice was provided in May 2008. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and opinions obtained. The Veteran was also afforded two hearings before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, both VLJs identified the issue to the Veteran, and the Veteran testified as to the events in service, treatment history and symptomatology of his respiratory disorder. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearings focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The Board also notes that actions requested in the prior Remands have been undertaken. Indeed, VA, Army Medical Center, and private medical records were obtained, an additional hearing was scheduled and held, and an additional VA medical examination and opinion was obtained. Accordingly, the Board finds that there has been substantial compliance with the prior Remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board Remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) (2015) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain respiratory disabilities, such as bronchiectasis or tuberculosis, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran essentially contends that he developed a respiratory disability other than pleural plaques as a result of asbestos exposure during his active service, resulting in his current respiratory disability. The Board finds that the criteria for service connection for a respiratory disorder other than pleural plaques have not been met because the evidence reflects that the Veteran's chronic obstructive pulmonary disease (COPD) is unrelated to service and the evidence does not show that the Veteran has any other respiratory disorder other than pleural plaques as a result of asbestos exposure. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. § 3.303. The Veteran was exposed to asbestos in service while working in the boiler rooms in the Navy and subsequently developed a respiratory disorder; he previously claimed that he had asbestosis. However, he is not competent to diagnose a complex disease of the respiratory system so the Board must rely on the medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). There is no evidence that the Veteran had asbestosis other than his own lay statements, and there is no evidence of any other respiratory disorder other than pleural plaques related to his exposure to asbestos. His treatment records do not show asbestosis or another respiratory diagnosis other than pleural plaques and COPD, although some discuss his exposure to asbestos. Specifically, during service the Veteran was noted to have asbestos exposure and rounded atelectasis, and he was diagnosed with asbestos-related pleural plaques. When the Veteran first underwent VA examination in connection with his claim in September 2008 he was diagnosed with asbestosis by history, pending diagnostic tests. His follow-up pulmonary function testing was normal and the VA examiner submitted an addendum opinion asserting that there was no definitive diagnosis of asbestosis and that he could not make one without resorting to speculation. A chest x-ray from December 2009 showed only pleural plaques consistent with asbestos exposure. The Veteran carried the diagnosis of pleural plaques and was later diagnosed with COPD, not related to service but due to smoking cigarettes. In March 2012, pursuant to the Board's September 2011 Remand order, the Veteran again underwent VA examination in connection with his claim. At the time, the VA examiner opined that the Veteran had pleural plaques consistent with asbestos exposure, and that the Veteran had COPD based on his chest x-ray. The examiner opined that the COPD was due to chronic smoking and unrelated to asbestos exposure. There were no other respiratory disabilities diagnosed, and there were no respiratory symptoms that were not considered. The Veteran's VA pulmonologist submitted a written statement in April 2013 indicating that the Veteran had pleural plaques and rounded atelectasis consistent with asbestos exposure, but did not note any other respiratory disorders. Since that time the Veteran has continued to be diagnosed with pleural plaques and COPD, but there are no other respiratory disabilities or undiagnosed respiratory symptoms noted. The Veteran's pulmonary function test findings have been consistent with COPD, rather than any asbestos-related disorder. The evidence in this case is clear that the Veteran's COPD is due to smoking and not his military service, to include exposure to asbestos. Of note, for claims received by VA after June 9, 1998, such as this one, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 C.F.R. § 3.300 (2015). As such, service connection for COPD is not warranted. At the Board hearing in March 2013, the Veteran testified that he had never been diagnosed with asbestosis or another respiratory disability other than pleural plaques or COPD. He had an opportunity to provide evidence supporting his claim, but neither the Veteran nor his representative provided evidence of a diagnosis of asbestosis or another respiratory disorder related to asbestos other than pleural plaques. Without any competent evidence, the Board cannot find that the Veteran had a diagnosed respiratory disability related to asbestos other than pleural plaques. Service connection cannot be established when there is no present disability shown. See Brammer, 3 Vet. App. at 225. While the Veteran believes that he has a current respiratory disability not otherwise diagnosed that is related to asbestos exposure in service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of asbestos-related respiratory disabilities are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his respiratory disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to any current respiratory disability not otherwise diagnosed is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the diagnosis and etiology of his current respiratory disability is not competent medical evidence. The Board finds the diagnoses and opinions of the VA examiners to be significantly more probative than the Veteran's lay assertions. In this case, there is no competent evidence diagnosing the Veteran with a current respiratory disability other than pleural plaques and COPD. Thus, the preponderance of the evidence is against the claim, and the claim for service connection for a respiratory disorder due to asbestos exposure, other than pleural plaques is denied. ORDER Entitlement to service connection for a respiratory disorder due to asbestos exposure, other than pleural plaques, is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs