Citation Nr: 18149521 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-34 007 DATE: November 9, 2018 ORDER Entitlement to service connection for a disability due to asbestos exposure, not including bilateral pleural plaques, is denied. FINDING OF FACT The record does not reflect a diagnosis for any disability due to asbestos, other than already service-connected bilateral pleural plaque. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability due to asbestos exposure, not including bilateral pleural plaques, for substitution purposes, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1963 to June 1972. He died in December 2017. The appellant is his widow. In July 2018, request for substitution of claimant upon death of claimant was granted; 38 U.S.C. § 5121A ; 38 C.F.R. § 3.1010 (b). Additional VA clinical records were associated with the record that have not been considered by the Agency of Original Jurisdiction (AOJ) in connection with the current claim. However, as these records are duplicative of prior treatment records, waiver of AOJ consideration is not necessary The current claim was initially appealed as entitlement to service connection for mesothelioma. The Board has broadened the issue on appeal to better reflect, the assertions made throughout the appeal and the medical evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). This change is reflected on the title page of this decision. Entitlement to service connection for a disability due to asbestos exposure, not including bilateral pleural plaque. The appellant is seeking service connection for a disability due to asbestos exposure, for substitution purposes. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. See Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Prior to his death, the Veteran asserted that he developed a disability, mesothelioma, due to in-service exposure to asbestos. See March 2012 VA Form 21-526. In-service asbestos exposure is conceded as personnel records confirm a military occupational specialty of engineman, which is known to be associated with asbestos. Notwithstanding this determination, the record is negative for diagnosis or report of any asbestos-related disability, to include mesothelioma, cancers of the lung, asbestosis, or pulmonary fibrosis. To that end, neither the Veteran nor the appellant has asserted that the Veteran was diagnosed with mesothelioma. Rather, prior to his death, the Veteran reported being diagnosed with pleural plaques and being exposed to asbestos. See July 2016 VA Form 9. His primary contention was that compensation was warranted as asbestos exposure and diagnosed pleural plaques could, over time, develop into mesothelioma. As stated, the record is negative for diagnosed mesothelioma. In this regard, an August 2016 VA respiratory examination, diagnosed bilateral pleural plaques and was silent with respect to any other diagnosed respiratory disabilities. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). As such, asbestos exposure, without associated disability, cannot be compensated. Considering the lack of diagnosis, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the RO has incorporated a claim for service connection for calcified pleural plaques into the current appeal. See June 2017 Supplemental Statement of the Case. However, review of the record establishes that the Veteran was already in receipt of service-connection for bilateral pleural plaques at the time of his death. See October 2016 Rating Decision. As such, the Board considers that disability already adjudicated and fully service-connected. While the Board is sympathetic to the appellant’s contentions, in the final analysis, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel