Citation Nr: 1715322	
Decision Date: 05/08/17    Archive Date: 05/22/17

DOCKET NO.  12-03 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to service connection for a lung disability, claimed as shortness of breath, to include as due to in-service exposure to asbestos, aerosols, and solvents.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1977 to April 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which, in pertinent part, denied the Veteran's claim of entitlement to service connection for dyspnea, previously claimed as shortness of breath.

This case was previously before the Board in September 2014, when it was remanded for further development.  The RO continued the denial of the Veteran's claim, as reflected in the December 2015 supplemental statement of the case, and returned the claim to the Board for further appellate review.

In August 2012, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing.  A transcript of the hearing is of record.


FINDING OF FACT

The preponderance of the evidence shows that the Veteran does not have a distinct disability manifested by dyspnea (shortness of breath).


CONCLUSION OF LAW

The criteria for service connection for a lung disability, claimed as shortness of breath, to include as due to in-service exposure to asbestos, aerosols, and solvents, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.012, 3.303 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in January 2008.  This letter informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties in obtaining evidence.  This letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Thereafter, the case was readjudicated by issuing a statement of the case (SOC) in February 2012, as well as a supplemental statement of the case (SSOC) in December 2015.  Thus, the Veteran has received all required notice concerning his claim, and it has been reconsidered since providing all required notice.

Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records, VA medical records, private medical records, buddy statements, and the Veteran's contentions.  Neither the Veteran, nor the Veteran's representative, has identified, and the record does not otherwise indicate, any other evidence relevant to his claim that has not been obtained.

Furthermore, the Veteran was also provided with a VA examination in August 2011.  Additionally, as a result of conflicting medical opinions regarding diagnoses and the etiology of the Veteran's complaints of shortness of breath, VA obtained a pulmonary evaluation from a pulmonary specialist.  Review of the examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  Therefore, the Board concludes that these examination reports, collectively, are adequate for purposes of rendering a decision in this case.  See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Lastly, the Board finds that there was substantial compliance with its prior remand directives.  Specifically, the RO obtained the Veteran's outstanding VA treatment records and associated them with the claims file.  Further, the RO assisted the Veteran in obtaining pertinent private medical records.  Finally, the matter was readjudicated in a December 2015 SSOC, as directed by the Board.  Accordingly, there was substantial compliance with the Board's prior remand instructions, and no further remand is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Lung Disability

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Generally, service connection requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

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 veteran 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 to the claimant.

A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

The Veteran is seeking service connection for a lung disability, claimed as shortness of breath, on the basis that it was incurred in or aggravated by service, to include as due to in-service exposure to asbestos, aerosols, and solvents.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed.  In this case, the medical evidence of record reflects that the Veteran was diagnosed with slowly progressive exertional dyspnea in March 2009 and pulmonary fibrosis in June 2011.  See Dr. M.B.'s March 2009 and June 2011 Private Medical Opinions.

However, both the August 2011 VA examination report, and subsequent January 2012 pulmonary evaluation, show that the Veteran does not have a diagnosable respiratory condition.  In August 2011, the VA examiner indicated that the Veteran does not have any objective medical evidence of pulmonary fibrosis and noted that all diagnostic testing done in the past is normal.  The examiner opined that the Veteran's symptom of shortness of breath on exertion (dyspnea) is most likely due to obesity and deconditioning in the absence of any diagnosable respiratory condition.  Due to the conflicting medical opinions, VA obtained an opinion from a pulmonary specialist in January 2012.  

The pulmonary specialist indicated that review of a December 2009 chest CT revealed no changes that suggest asbestos exposure such as pleural plaques and there was no indication of pulmonary fibrosis at all.  The examiner indicated that the Veteran's CT scan evaluations show no evidence of asbestosis or significant asbestos exposure and his pulmonary function changes are mild and nonspecific.  The examiner noted that mild decreases in diffusing capacity, lung volumes, and spirometry can be explained simply by obesity.  The examiner opined that it is not likely that the Veteran's symptomatic dyspnea is caused by exposures within his military service and concluded that his diagnosis of pulmonary fibrosis is erroneous and not based on evidence.

In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Therefore, because the evidence of record shows that the Veteran does not have a diagnosable respiratory condition aside from his symptomatic dyspnea, the Board concludes that service connection for a lung disability, claimed as shortness of breath, to include as due to in-service exposure to asbestos, aerosols, and solvents is not warranted, and no further discussion of the remaining elements is necessary.  See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

In reaching this determination, the Board acknowledges Dr. M.B.'s June 2011 medical opinion, where he indicated that the Veteran has a diagnosis of pulmonary fibrosis, and further opined that this condition is more likely than not related to his in-service exposure to asbestos, aerosols, and solvents.  See also Dr. M.B.'s January 2016 Private Medical Opinion (a resubmission of his June 2011 medical opinion).  However, the most probative medical evidence of record indicates that Dr. M.B.'s medical opinion is baseless.  In finding that the Veteran does not have a diagnosable respiratory condition aside from his symptomatic dyspnea, the August 2011 and January 2012 VA medical opinions of record have discussed the Veteran's in-service exposure to asbestos, aerosols, and solvents and still reached a conclusion that his symptomatic dyspnea is most likely due to obesity and deconditioning in the absence of any diagnosable respiratory condition.  Therefore, the Board finds that Dr. M.B.'s records have little probative weight.

Accordingly, to the extent that the medical evidence addresses whether the Veteran has a lung disability, the preponderance indicates that he does not.  The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record.  See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau, supra.  To the extent that the Veteran has indicated that he currently has a lung disability manifested by dyspnea, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits.  Further, as the question of causation extends beyond an immediately observable cause-and-effect relationship, he is not competent to render a diagnosis or address etiology in the present case.  Although lay persons are competent to provide opinions on some medical issues, see, e.g. Kahana, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran currently has a lung disability, falls outside the realm of common knowledge of a lay person.  Consequently, his statements as to a current diagnosis of pulmonary fibrosis, which is related to his service, are not probative.

As a preponderance of the evidence is against a finding that the Veteran has a diagnosable respiratory condition aside from his symptomatic dyspnea, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to service connection for a lung disability, claimed as shortness of breath, to include as due to exposure to asbestos, aerosols, and solvents, is denied.



____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs