Citation Nr: 18156071 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-53 709 DATE: December 6, 2018 ORDER Entitlement to service connection for asbestosis is denied. REMANDED Entitlement to service connection for a right ankle condition, to include residuals of status post right ankle non-union fracture is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of asbestosis. CONCLUSION OF LAW The criteria for service connection for asbestosis are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for asbestosis, to include as due to claimed exposure to asbestos. As an ancillary matter, the Board notes that service connection was separately granted in September 2016 for reactive airway disease/asthma. As such, the current appeal before the Board does not include the Veteran’s reactive airway disease/asthma and this condition will not be discussed further herein. Generally, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board concludes that the Veteran does not have a current diagnosis of asbestosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In July 2013, a VA examiner opined that the Veteran’s pulmonary functioning testing did not reflect claimed asbestosis. She additionally stated that the Veteran had a restrictive defect that did not meet the criteria for diagnosis of asbestosis. The examiner further noted that the restrictive defect was mostly due to obesity. As there is no indication that the restrictive defect is a medical diagnosis, the Board finds that the July 2013 VA examination does not establish a diagnosis of asbestosis or a similarly related condition VA treatment records do not document any diagnoses of asbestosis or a related condition. Likewise, private medical records do not indicate that the Veteran has a diagnosis of asbestosis. Of note, a February 2012 letter from Dr. W.R. stated that he had treated the Veteran from 2001 to 2006 for a service-connected respiratory condition. He did not note a diagnosis of asbestosis. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Accordingly, service connection is not warranted and the claim for asbestosis must be denied. The preponderance of the evidence is against the claims, and, consequently, the benefit of the doubt doctrine is not for application. See 38 U.S.C. §5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Having reviewed the record, the Board finds that remand is warranted for the claimed right ankle condition. In July 2013, a VA examiner determined that the Veteran’s claimed right ankle condition was less likely as not incurred in or caused by service. She noted the October 1987 X-ray finding of an old avulsion fracture of the distal fibula and stated that there was no objective evidence of when the old fracture occurred and that it would be mere speculation to say when the old fracture actually occurred. The Board finds that remand is warranted as it is unclear whether the examiner considered the Veteran’s lay statements that he sprained his right ankle on numerous occasions during service, but did not seek treatment until he had difficulty walking on it. Additionally, though the examiner cited to the October 1987 radiology report, it is unclear whether she considered the October 1987 emergency record indicating that the Veteran was treated for right ankle trauma due to running PFTs. Accordingly, the Veteran should be afforded a new examination to determine the nature and etiology of his right ankle condition. Attention is invited to the Veteran’s January 1982 enlistment examination indicating normal evaluation of the feet. If the examiner determines that an opinion cannot be provided without speculation, the opinion should be accompanied with a statement on whether additional evidence is needed or whether the inability to provide an opinion is based on the limits of medical knowledge. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from April 2016 to present. 2. Schedule the Veteran for an examination to determine the nature and etiology of any right ankle condition. The examiner must opine whether any right ankle condition (to include residuals of status post right ankle non-union fracture) is at least as likely as not related to an in-service injury, event, or disease, including the October 1987 treatment for right ankle trauma. The examiner must consider the Veteran’s lay statement that sprained his right ankle on numerous occasions during service, but did not seek treatment until he had difficulty walking on it. See January 2012 Statement. Attention is invited to the January 1982 enlistment examination indicating normal evaluation of the feet If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required), or the examiner does not have the needed knowledge or training. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel