Citation Nr: 1800275	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  14-06 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service-connection for asbestosis. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Kutrolli, Associate Counsel


INTRODUCTION

The Veteran served honorably in the United States Navy from June 1974 to June 1976. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The Veteran requested and received a video conference hearing by the undersigned Veterans Law Judge on June 29, 2017.  The transcript is of record. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

There is no current diagnosis of asbestosis or asbestos related disease. 


CONCLUSION OF LAW

The criteria for establishing entitlement to service-connection for asbestosis have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Service-Connection 

The Veteran seeks service-connection for asbestosis.  Service-connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  To establish service-connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service-connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  However, in the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Here, the claim fails because the record is devoid of any diagnosis of asbestosis or asbestos related diseases either prior to or during the period on appeal.  See Brammer, 3 Vet. App. at 225.  Indeed, the Veteran testified during his hearing that he has never been diagnosed with asbestosis.  To this end, the Board recognizes that the Veteran is competent to testify to events in service and competent to testify to observable symptoms, however, he lacks the requisite knowledge, skills and experience to render a competent medical diagnosis of asbestosis or asbestos related diseases.  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).  

Lastly, during the video conference hearing on June 29, 2017, the Veteran's representative stated that the Veteran's claim is essentially one for chronic obstructive pulmonary disease (COPD).  Hearing Transcript 3 ("...the bottom line on his case is that he feels that his asbestosis, which they're actually saying he has COPD, should be service-connected.").  COPD is an umbrella term used to describe progressive lung diseases, such as emphysema, chronic bronchitis, and refractory (non-reversible) asthma, which make it difficult to breathe.  The Veteran filed an original service-connection claim for COPD in August 2008 that was denied in February 2009 based on the lack of medical evidence linking the Veteran's COPD to his military service.  That decision became final because the Veteran did not appeal it within one year.  He subsequently tried to reopen the claim on the basis of new and material evidence, which was denied in January 2012.  A statement of the case was issued after the Veteran submitted a notice of disagreement with the January 2012 decision; however, the Veteran did not perfect an appeal of that issue by submitting a VA Form 9, Appeal to Board of Veterans' Appeals.  Thus, that issue is not before the Board.  Accordingly, the Board will not expand this claim to include other respiratory conditions because the Veteran was previously denied service-connection for COPD (see definition above) and did not perfect an appeal on that issue.

Because the preponderance of the evidence is against this claim, the benefit-of-the-doubt provisions are inapplicable.  38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Accordingly, the claim is denied.


ORDER

Entitlement to service-connection for asbestosis is denied. 



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs