Citation Nr: 1750109 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 10-26 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asbestosis. 2. Entitlement to service connection for a back or spine disorder. ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1990 to February 1995, and again from November 1996 to January 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran requested a Board hearing in his Form 9 substantive appeal. The RO scheduled a hearing and sent notice to the Veteran in March 2014. However, he did not appear for the hearing, and the hearing request was effectively withdrawn. This case was previously before the Board in June 2014, at which time it was remanded for further development. In January 2017, VA sent the Veteran a letter asking him to identify any relevant private treatment records and authorize VA to obtain them; however, the Veteran did not respond to this request. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). By attempting to assist the Veteran, the AOJ substantially complied with the remand directives, and a further remand is not required. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remaining requested development has been completed, no further action to ensure compliance with the remand directives is required. See id. The Board has recharacterized and broadened the claim for asbestosis to one for a respiratory disorder, to include asbestosis. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not 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). FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding a current respiratory disorder, to include asbestosis. 2. The weight of the competent and probative evidence is against finding a current back or spine disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disorder, to include asbestosis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for entitlement to service connection for a back or spine disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA sent a letter to the Veteran in September 2007, prior to adjudication of his claims. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). All identified, available medical records have been obtained and considered. In September 2008, VA informed the Veteran that his service treatment records were missing and that all efforts to obtain the records have been exhausted. VA requested that the Veteran submit any service treatment records; the Veteran did not respond. VA prepared a memorandum outlining actions taken to obtain the Veteran's service treatment records and determined that further efforts would be futile. The Veteran was afforded relevant VA examinations in July 2015. Given the above, the Board will proceed with consideration of the Veteran's appeal. It is recognized that there is a heightened obligation to explain findings and conclusions, and to consider carefully the benefit-of-the-doubt doctrine. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, as the Board finds herein that there is no current respiratory disorder or back disorder, there is no prejudice to the Veteran due to the missing service treatment records, as they are not material to whether a current disability exists. II. Service Connection As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The current disability requirement is 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," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). A. Respiratory disorder After review of the record, the Board finds that the criteria for service connection for a respiratory disorder, to include asbestosis, have not been met. In July 2015, a VA physician stated that the Veteran does not now have, nor has he ever been diagnosed with, a respiratory disorder, to include asbestosis. In support, the examiner cited the lack of any respiratory diagnosis in the Veteran's medical records, as well as the Veteran's admission that to his own knowledge he has no diagnosed respiratory disorder. The examiner stated further that the Veteran smokes but has no symptoms nor a diagnosis related to smoking. Additionally, the Veteran's July 2015 chest x-ray was normal. The examiner also noted that the Veteran was never found to have a diagnosis of, nor any findings consistent with, asbestosis disease. 07/27/2015 VBMS, C&P Exam (Medical Opinion), pp. 1-2; see also 07/27/2015 VBMS, C&P Exam (Respiratory DBQ). The Board finds the examiner's opinion to be competent, credible, and probative, as it is supported by an in-person examination, review of the relevant medical records, medical expertise, and a sufficient rationale, including x-ray testing. The Veteran's treatment records are otherwise absent for a diagnosed respiratory disorder. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding a current respiratory disorder, to include asbestosis, during or just before the period on appeal. Without competent evidence of a diagnosis of a chronic respiratory disorder, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. B. Back disorder After review of the record, the Board finds that the criteria for service connection for a back or spine disorder have not been met. In July 2015, a VA physician stated that the Veteran does not now have, nor has he ever been diagnosed with, a back disorder. The examiner reviewed the relevant medical records and acknowledged the Veteran's lay statements regarding his symptoms, but noted that no specific diagnosis has been rendered regarding the back other than "pain." In further support, the examiner noted that a spinal x-ray was normal, and that there were no findings of arthritis, degenerative disc disease, or degenerative joint disease. 07/27/2015 VBMS, C&P Exam (Medical Opinion), pp. 2-3; see also 07/27/2015 VBMS, C&P Exam (Back DBQ). The Board finds the examiner's opinion to be competent, credible, and probative, as it is supported by an in-person examination, review of the relevant medical records, medical expertise, and a sufficient rationale, including x-ray testing. The Veteran's treatment records are otherwise absent for a diagnosed back or spine disorder. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding a current, chronic back disorder during the period on appeal. Without competent evidence of a diagnosis of a back disorder, the Board must deny the Veteran's claim. See Degmetich, 104 F.3d at 1333. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. (CONTINUED ON NEXT PAGE) ORDER Service connection for a respiratory disorder, to include asbestosis, is denied. Service connection for a back or spine disorder is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs