Citation Nr: 18156031 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-60 703 DATE: December 6, 2018 ORDER Service connection for a back disability is denied. Service connection for mesothelioma is denied. Service connection for arteriosclerotic heart disease (coronary artery disease) is denied. REMANDED Service connection for cause of death is remanded. FINDINGS OF FACT 1. The evidence is insufficient to support a finding that the Veteran’s back disability was etiologically related to his service. 2. The evidence does not to support a finding that the Veteran had a diagnosis of mesothelioma. 3. The Veteran’s heart disease was not shown to have occurred within 1 year after separation from service, and it has not otherwise been shown to have been caused by his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for mesothelioma have not been met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for arteriosclerotic heart disease (coronary artery disease) have not been met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1979 to June 1992. He died in September 2013. The appellant is his widow who has been recognized as the appropriate substitute. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection can be established on a secondary basis for a disability which is proximately due to, or the result of a service connected disability. 38 C.F.R. § 3.310 (a). Back The appellant is seeking service connection for a back disability, which she believes related to the Veteran’s service. The service treatment records (STRs) show that in March 1982, the Veteran complained of back strain and was diagnosed with left sciatica. In August 1986 the Veteran sought treatment for left sided back pain with radiation into the hip and down the extremities. X-rays were negative with the exception of slight levoscoliosis being noted, and the Veteran was given a temporary diagnosis of left sided lumbosacral dysfunction. VA treatment records first show post-service back treatment in May 2003 when a MRI noted moderate to severe lower lumbar degenerative disc disease. However, this was more than a decade after service. A VA examination in March 2013 indicates that the Veteran had lumbar strain with fusion surgery and intervertebral disc syndrome. However, Therefore, the medical evidence clear indicates that the Veteran had a back disability and he had treatment for his back problems during service. The issue is whether the Veteran’s back disability either began during or was otherwise related to the in-service back problems. In February 2014, the VA examiner reviewed the claims file, but concluded that the Veteran’s back disability was less likely than not (less than 50 percent probability) incurred in or caused by the in-service injury, event or illness. The medical examiner reasoned that the two occasions when back problems were noted in STRs, in March 1982 and August 1986, were temporary incidents. STRs are silent for any complaints of back issue after 1986. Between 1986 and 1992 (when the Veteran separated from his service), there was a period of 6 years when the Veteran had no documented evaluation or treatment for his back. Had he been experiencing on-going chronic low back pain, the examiner reasoned that it would have been difficult for him to continue performing his usual duties of the military, and there would be more evaluation and/or treatment records shown on STRs. The examiner also indicated that a MRI in 2003 noted a history of “ruptured discs”, indicating a previous, intervening, interceding event with his back, which appears to the examiner, occurred after the military, as there was no documented evidence of a lumbar spine injury during the military service. The VA medical opinion has not been challenged or contradicted by other medical opinion, and it is both grounded in the evidence of record and well-reasoned. As such, the opinion is afforded great probative value. Moreover, the Board noted that the earliest VA treatment records for back pain were dated back to May 2003, more than 20 years after the Veteran separated from his service. Thus, the medical opinion and medical records make it less likely than not that the Veteran had a chronic back condition that was etiologically related to his military service. While the appellant believes that the Veteran’s back condition was related to the two occasions of back pain noted in STRs, determining the etiology of back disability is a medically complex question, and the appellant lacks the medical training or expertise to render such an opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Nevertheless, a medical opinion was obtained to directly and specifically consider the Veteran’s contentions, to include the two back pain incidents during service, but ultimately the medical professional found that the evidence did not medically support the Veteran’s contentions. In sum, the evidence is insufficient to support a finding the Veteran’s back disability was etiologically related to his service. Service connection is denied. Mesothelioma The appellant is seeking service connection for mesothelioma, which she believes related to the Veteran’s service, to include exposure to asbestos in service while he performed his duty as an air craft pneudraulic system technician. The Veteran’s service personnel records confirm that the Veteran may have asbestos exposure in his working environment in military, therefore, exposure to asbestos is conceded. However, exposure to hazardous material alone is not considered to be a disability, rather, it must be shown that the Veteran developed a disease such as asbestosis or mesothelioma as a result of asbestos exposure. The VA treatment records show that in January 2013 a pulmonary function test revealed “normal spirometry” and chest x-rays showed no suggestion of mesothelioma. In January 2018, a VA examiner reviewed the Veteran’s case file and indicated that the available medical records were silent for a diagnosis of mesothelioma. The examiner found that serial chest CT scans did not support a diagnosis of mesothelioma; and there was no documentary, historical, or clinical evidence of a primary respiratory condition (claimed as mesothelioma) for the Veteran. The appellant argued that evidence of mesothelioma may not surface for 15 to 20 years, but asserted that the probability of its existence in the human body was about 95 percent. However, the appellant did not provide any medical evidence to support her contentions. Unfortunately, the diagnosis of mesothelioma is a medically complex question, and the appellant lacks the medical training or expertise to render such an opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, her assertions are insufficient to establish that the Veteran had an asbestos exposure related disease. In sum, the evidence does not to support a finding that the Veteran had a diagnosis of mesothelioma prior to his death. In the absence of proof of a disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for mesothelioma is denied. Heart Disease The appellant is seeking service connection for arteriosclerotic heart disease (coronary artery disease), which she believes either began during or was otherwise caused by his military service. STRs do not reveal any diagnosis or treatment of heart disease. For example, a medical examination report in August 1987 indicated no heart problems; and physical examination conducted in November 1990 revealed normal heart conditions with regular heart rate and rhythm. VA treatment records show that the Veteran experienced a heart attack in 2002. A chest CT in February 2004 revealed coronary artery calcifications. The records show that the Veteran experienced massive heart attack in July 2011 and had heart stents inserted in August 2011. The evidence clearly indicates that the Veteran had heart decease prior to his death, in fact, he died from arteriosclerotic and hypertensive cardiovascular disease, as indicated by a January 2014 VA medical opinion. However, the medical records do not establish that the heart disability either began within a year of service, was continuous from service, or was otherwise caused by his military service. Here, the records show that the earliest heart problem reported by the Veteran was dated in 2002 and the earliest finding of his heart condition (coronary calcification) was dated in 2004, more than 10 years after the he separated from service. Additionally, there is no evidence suggesting that the Veteran’s heart condition was otherwise caused by his service. The appellant contents that the Veteran’s heart condition was caused by his diabetes and obesity which were caused by his hypertension, back disability, hypothyroidism, and mesothelioma which she believes should be service connected. However, as diabetes, obesity, hypertension, back disability, hypothyroidism and mesothelioma are not service-connected disabilities, service connection for Veteran’s heart disease cannot be established on a secondary basis related to these conditions. A medical opinion was obtained, but the examiner found that the Veteran’s death, due to hypertensive cardiovascular disease, was due to his multiple risk factors for heart disease including hypertension, tobacco abuse, morbid obesity, diabetes, hyperlipidemia, sleep apnea, male gender and positive family history. She noted that he did not have a diagnosis of hypertension in the military. Accordingly, service connection for arteriosclerotic heart disease (coronary artery disease) is denied. REASONS FOR REMAND The appellant is seeking service connection for cause of death. She initially contented that the Veteran’s death was caused by service connectable disabilities, which was denied by the Agency of Original Jurisdiction (AOJ). Subsequently, she contented in her substantive appeal (Form 9) that her husband went to VA medical centers complaining that he had very little or no blood flow from his neck to his head less than one week before he died, and the Veteran reportedly told the doctors that he had experienced this problem for months, but the appellant contends that it was never checked out or treated, and she believes that this lack of treatment was negligent and resulted in the Veteran’s death. VA treatment records show that the Veteran did seek VA treatment in September 2013 shortly before his death. The Board finds that a claim under 38 U.S.C. § 1151 has been raised by the appellant and should be adjudicated by the Agency of Original Jurisdiction (AOJ). The matter is REMANDED for the following action: Adjudicate the claim for cause of death on the basis of the appellant’s 38 U.S.C. § 1151 allegation voiced in the December 2016 VA Form 9. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel