Citation Nr: 1815194	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  09-46 799	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a respiratory condition to include as due to exposure to asbestos.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1964 to April 1966.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied service connection for an asbestos related respiratory condition. The Veteran has since relocated, and his case is being handled through the RO in Atlanta, Georgia.

This matter was remanded by the Board in June 2013 and August 2016, for the development of additional evidence. 


FINDINGS OF FACT

The Veteran does not have a respiratory disability.


CONCLUSION OF LAW

The Veteran does not have respiratory disability that is the result of a disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in July 2008. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided a VA examination with respect to his claim and the examination adequately provides the findings necessary to a resolution to the appeal. 

The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The Board notes initially that a review of the claims file reflects that in previous Board remands, the RO was requested to upload the Veteran's service treatment records, that the August 2013 VA examiner referenced. Responses to the RO's request for records stated that the Veteran's service treatment records (STRs) were now unavailable and could not be located. VA has heightened duties when the Veteran's service treatment records are unavailable. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the case law does not establish a heightened benefit-of-the-doubt standard, only a heightened duty of the Board to consider applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). 

II. Service Connection

The Veteran asserts that he has a current respiratory condition that was incurred during service or alternately that the condition was a result of exposure to asbestos during service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of a showing of a current disability, service connection cannot be granted. Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

An August 2013 VA examination report shows that the Veteran reported that he had no know respiratory diagnosis and had not been prescribed any respiratory medications. However, he reported that he was exposed to asbestos or respiratory exposures while in service during weapons testing. The examiner noted that the Veteran did not have any pulmonary conditions. Chest X-rays showed no radiographic evidence of acute cardiopulmonary disease or calcified pleural plaques. A pulmonary function testing (PFT) was performed which showed that the Veteran did not have multiple respiratory conditions. Physical examination of the chest showed clear lung sounds, no wheezing, crackles or rhonchi. Easy work of breathing on air room was noted. No coughing during the 60 minutes during the exam was noted. The examiner noted that the pulmonary interpretation of PFT showed no airflow limitations and diffusing capacity was normal. 

The August 2013 VA examiner concluded that the Veteran's claimed condition was less likely than not incurred in or caused by his military service. The examiner explained there was no respiratory diagnosis and noted that the Veteran had not been hospitalized or treated as an outpatient for any respiratory condition since 2008 (the year in which he filed his claim for service connection). The examiner also noted that the Veteran's claims file had been reviewed in its entirety and there were no medical records since his service separation supporting a respiratory diagnosis. Although the Veteran reported to the examiner that he was hospitalized in service for 2-3 weeks in Korea for some type of respiratory condition, the examiner clarified that he was hospitalized for 7 days for observation of a suspected cardiac condition. The presenting symptoms leading to the hospitalization was fatigue and shortness of breath after marching 8 miles. The Veteran was followed from May to September 1965, and the final conclusion was that he "may very well have no heart disease."

Based on a review of the evidence, the Board finds that service connection for a respiratory condition is not warranted. The Board finds the August 2013 VA examination report and medical opinion to be persuasive and to be uncontradicted by any contrary competent evidence to confirm a diagnosis of a respiratory condition. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). That opinion was based on a full review of the record to include the Veteran's statements and a thorough clinical evaluation. Neither the Veteran nor his representative has presented or identified any contrary medical opinion that would support the claim for service connection for a respiratory condition. 

The only evidence in support of the Veteran's claim is his own contentions. However, the Board finds that the Veteran is a layperson and there is no evidence of record to show that he has the specialized medical education, training, and experience necessary to provide a competent medical opinion as to the nature and etiology of a respiratory condition that he asserts warrants service connection. Diagnosing this condition and providing an etiological opinion is medically complex in nature and not subject to be diagnosed or identified by a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's statements regarding diagnosis and etiology are not competent. Even if they were competent, they are outweighed by the medical opinion obtained from a medical professional who found that the Veteran had no diagnosed respiratory condition. Moreover, statements made to VA examiner by the Veteran indicate that he has never been diagnosed with a respiratory condition or been prescribed medication for any respiratory condition. 

In the absence of any current diagnosis of a respiratory condition or symptom, the Board finds that service connection is not warranted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). 

The Board has considered all of the evidence of record, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).
 
ORDER

Service connection for a respiratory condition to include as due to exposure to asbestos is denied.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs