Citation Nr: 18156750 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-58 378A DATE: December 10, 2018 ORDER Entitlement to service connection for respiratory disability, to include asbestosis and shortness of breath, is denied. REMANDED Entitlement to a compensable initial rating for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has not at any time had respiratory disability that impairs his earning capacity. CONCLUSION OF LAW The criteria for service connection for respiratory disability, to include asbestosis and shortness of breath, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1968 to December 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for asbestosis and tinnitus and granted service connection for hearing loss and assigned an initial noncompensable rating. The Veteran timely appealed the denials of service connection and the initial rating assigned for hearing loss. In a December 2016 rating decision, the RO awarded service connection for tinnitus. That was a complete grant of the benefit sought with respect to the issue of service connection for tinnitus and, as such, that issue was no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). 1. Entitlement to service connection for asbestosis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). Under 38 U.S.C. § 1154(a), lay persons may provide evidence of diagnosis and nexus and VA must give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran contends that he has asbestosis that is related to his exposure to asbestos in service. However, a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In this case, as discussed below, there is no specific respiratory diagnosis and the Board has therefore recharacterized the claim as broadly as possible, to include the asbestosis referenced in the rating decision and statement of the case and the shortness of breath that appears to be the only respiratory symptom reflected in the lay and medical evidence. Service treatment records (STRs) are silent as to any complaints, treatments, or diagnoses for asbestosis, or a respiratory disability or symptoms. Post-service treatment records are silent as to any treatment or diagnoses with regard to a respiratory disability. A March 2016 VA examination report reflects that the Veteran had shortness of breath with physical activities such as walking more than a mile, and going up and down stairs, over the last year or two. He reported that he walked his dog half to one mile once or twice a day weather permitting, mowed the grass in the summer with a power lawnmower, shoveled snow in the winter as needed, gardened, and did light household work. The examination report indicated that the Veteran’s respiratory condition did not require oral or parenteral corticosteroid or inhaled medication, antibiotics, or oxygen therapy. The occupational history section of the examination report indicated that the Veteran was an auto mechanic from 1969 through 2014 and was retired since 2014. Significantly, the VA examiner indicated that the Veteran’s respiratory condition did not impact his ability to work. The examiner noted that while a September 2015 chest x-ray showed tiny nodule or granuloma in the lateral right lung, it was unremarkable. Pulmonary function tests (PFTs) were normal and revealed FVC of 113 percent, FEV-1 of 133 percent, and FEV-1/FVC of 118 percent. The examiner noted that the FVC percentage most accurately reflected the Veteran’s level of disability. The examiner reviewed the Veteran’s claims file and found that the Veteran’s military occupational specialty was probable for exposure to asbestos. Nevertheless, the examiner opined that the claimed disability was less likely than not related to service because the Veteran denied any diagnosis for his breathing problems. In addition, the PFT results, chest x-ray, and examination were unremarkable; and the VA examiner found that the Veteran did not have a diagnosis for breathing problems. In Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018), the Federal Circuit held that a diagnosis is not required to meet the current disability requirement. For example, pain alone can constitute disability even if not connected to a current underlying condition, if it causes impairment in earning capacity. Id. Even considering this broad definition of disability, however, the Veteran has not met the current disability requirement for the following reasons. While the March 2016 VA examiner conceded exposure to asbestos during service and noted the Veteran’s complaints of shortness of breaths, physical examination of the Veteran was normal, and the examiner found that the test results of the PFT and chest x-ray were unremarkable. In addition, the VA examiner and post-service records reflect no treatments or diagnosis of asbestosis or any other respiratory disability. There is no lay or medical evidence of respiratory symptoms that have at any time impaired earning capacity. The Veteran did not indicate that his shortness of breath had caused him to retire or otherwise impacted his employment, he was able to perform activities of daily living such as walking his dog half to one mile once or twice a day weather permitting, mowing the grass, shoveling snow, gardening, and light household work. He had shortness of breath walking more than a mile, and going up and down stairs, but did not indicate that this affected his daily life or earning capacity. The VA examiner specifically found that the Veteran’s respiratory symptoms did not impact his ability to work and there is no evidence to the contrary. Thus, the evidence does not indicate that the Veteran’s respiratory symptoms, specifically shortness of breath, constituted disability under Saunders because there is no evidence that it caused impairment in earning capacity. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not met the current disability requirement with regard to his claimed respiratory disability, broadly characterized. The benefit of the doubt doctrine is therefore not for application and entitlement to service connection for this claimed disability is thus not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a compensable initial rating for bilateral hearing loss is remanded. In August 2018, the Veteran contended that his bilateral hearing loss had worsened and requested a new VA examination to assess the severity of his condition. The Board notes that the last VA audiological examination was in April 2016. As such, the Board finds that a new VA examination is necessary to properly assess the severity of the Veteran’s bilateral hearing loss. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (“Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination”). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examination should be conducted in accordance with the current disability benefits questionnaire. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel