Citation Nr: 1801252 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-20 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for asbestosis, claimed as sleep apnea. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2016, the Veteran requested a Board hearing. His request was withdrawn July 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's reports of in-service asbestos exposure are supported by service department records. 2. The evidence does not show that the Veteran has ever been diagnosed or suspected to have asbestosis, any similar respiratory disability that is related to asbestos exposure, or any respiratory disability other than sleep apnea. 3. Sleep apnea did not have its onset in active service or for many years thereafter, and is not otherwise related to service, to include asbestos exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for asbestosis, claimed as sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board finds that VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The record reflects that the RO provided the Veteran with the requisite notice in August 2013, prior to the initial rating decision. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue herein decided has been obtained in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs) have been associated with the claims file. All identified and available post-service treatment records have been obtained. The Veteran was afforded a January 2017 VA examination and medical opinion for his claim. The Board notes the representative's request for an additional medical opinion in the December 2017 Informal Hearing Presentation and reports that the Veteran now requires oxygen therapy. However, the representative does not identify a specific deficiency with the January 2017 VA examination or the record as a whole. Review of the January 2017 VA examination report reflects that the examiner, a physician's assistant, reviewed the electronic records, conducted an examination and provided a medical opinion in light of the current medical literature on sleep apnea. See Cox v. Nicholson, 20 Vet. App. 563, 568-569 (2007) (a nurse, nurse practitioner, or other non-physician VA health care provider may provide competent medical evidence as long as the examination and opinions themselves are not incomplete or otherwise insufficient). Moreover, although the examiner misstated the sleep apnea diagnosis as 2013 instead of 2005, given that in either case there is a lengthy time between service and diagnosis, and the fact that the examiner indicated at another point in the examination that the Veteran had sleep apnea as early as 2005, the misstatement does not render the examination inadequate. Moreover, VA treatment records through April 2017 do not show any respiratory disorder, to include asbestosis, that has not been considered. Without a more specific objection concerning the January 2017 VA examination or identification of specific respiratory diagnosis as to which a new examination could provide further relevant information, a remand for an additional VA examination or medical opinion is not warranted. As indicated by the discussion below, the January 2017 VA examination adequate to decide the claim. The Veteran had not been afforded a VA respiratory examination separate from the multiple examinations that focused on sleep apnea. VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the record does not include medical evidence or lay reports concerning medical diagnosis or even suspicion for asbestosis or any other respiratory disorder other than sleep apnea at any time. McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 303 (2013); see May 2013 Disability Benefit Questionnaires (DBQs). Since a current respiratory or pulmonary disability possibly relating to asbestos exposure is not shown, an additional VA examination is not necessary. Id. For the above stated reasons, the Board finds that VA's duties to notify and assist have been satisfied. II. Service connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012). A grant of service connection for a disability requires: (1) a current disability; (2) an in-service incurrence of aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records (STRs) do not show any treatment or diagnosis for any respiratory or pulmonary type disorder. Service department records confirm that the Veteran's military occupational specialty (MOS) included fireman (FN) and boiler technician (BT). Under the M21-1 Adjudication Procedures Manual (M21 Manual), Part IV, subpart ii, Chapter 1, section I, topic 3, claims based upon exposure to asbestos require a MOS with a likelihood of exposure to asbestos and a diagnosed disability that has been associated with in-service asbestos exposure. In this case, the M21 Manual lists fireman (FN) and boiler technician (BT) as having a highly probable likelihood of exposure. As the Veteran's MOS is of the type with a high probability of exposure to asbestos, and he has provided consistent and credible statements regarding his work with the substance, the Board concedes that the Veteran was exposed to asbestos during active duty. See July 2014 Notice of Disagreement. A May 2013 VA Sleep Apnea Disability Benefits Questionnaire (DBQ) was completed by Dr. A. He reported that the Veteran had been diagnosed with obstructive sleep apnea and its onset was in 2005. A May 2013 VA Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) DBQ was also completed by Dr. A. He listed the Veteran's respiratory condition as obstructive sleep apnea. He reported that the Veteran did not have multiple respiratory conditions. The private and VA medical records, current through April 2017, do not show that the Veteran has asbestosis or another respiratory or pulmonary disorder. Rather, he has been diagnosed with obstructive sleep apnea. In January 2017, a VA sleep apnea medical opinion was obtained. The examiner reported that the Veteran had a long history of sleep apnea from 2005 and noted that the Veteran had a high probability of asbestos exposure during active service. He expressed a negative medical opinion concerning sleep apnea and military asbestos exposure. He stated that the medical literature review did not reveal any direct or indirect relationship between a remote history of asbestos exposure and sleep apnea. The Veteran contends service connection is warranted for asbestosis, claimed as sleep apnea. The Board finds that the preponderance of the evidence is against the claim, and it must be denied. For sleep apnea, the record shows that the Veteran was diagnosed with this disorder in approximately 2005. The Board has considered the Veteran's contentions that sleep apnea is related to service, specifically asbestos exposure. His reports of asbestos exposure are supported by service department records and are credible. It is therefore conceded that he had asbestos exposure during service. However, the issue of whether sleep apnea is related to a remote history of asbestos exposure is a complex medical question. The issue involves a history of asbestos exposure decades ago with a relatively recent onset of sleep apnea in 2005. The question of whether a particular disease is related to asbestos exposure is one that relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Due to the Veteran's status as a lay witness, his lay reports about a nexus between asbestos exposures and sleep apnea are not competent. Review of the medical records and January 2017 VA medical opinion does not show a nexus between current sleep apnea and asbestos exposure and the evidence does not otherwise suggest sleep apnea is related to service. The January 2017 VA examiner reported that he reviewed the medical literature and could not find a link between asbestos exposure and service and that the Veteran's sleep apnea was more likely due to morbid obesity with post service weight gain. As the January 2017 VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record and reference to medical literature, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The medical opinion is therefore entitled to significant probative weight. Id. Moreover, there is no contrary opinion in the evidence of record and as noted the Veteran is not competent to opine on this question. For asbestosis or similar respiratory disorder, the Board has reviewed the record with consideration as to whether such disability is present. As a threshold issue, a current disability must be established for service connection. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C. § 1110 and 38 U.S.C. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board notes that a current disability encompasses any diagnosis given proximately to filing the claim and any diagnosis that appears during the claims period even if it later resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 303 (2013) (to the effect that where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate or the previously diagnosed condition had gone into remission). In this case, the Board finds that a current asbestosis or similar respiratory disability is not shown at any time during the appeal period. Id. The Board points out that the Veteran does not report ever being diagnosed with a respiratory or pulmonary disability other than sleep apnea. The lay and medical evidence do not suggest the presence of asbestosis or related disability. See May 2013 DBQ reports; VA treatment records through April 2017. For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for asbestosis, claimed as sleep apnea, must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for asbestosis, claimed as sleep apnea, is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs