Citation Nr: 20031809 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 15-12 224A DATE: May 6, 2020 ORDER Entitlement to service connection for a lung disorder for accrued benefit purposes is denied. FINDING OF FACT The Veteran’s lung disorder did not manifest during service, was not due to exposure to asbestos during service, and was not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lung disorder for accrued benefit purposes have not been met. 38 U.S.C. § 1110, 1131, 5121 (a)(2012); 38 C.F.R. §§ 3.102, 3.303 (a), 3.1000 (a)(2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from March 1953 to January 1957. He died in June 2015. The Appellant is the Veteran's surviving spouse. Prior to his death, the Veteran filed a claim of service connection for a lung disorder. In a March 2017 VA memorandum, the Appellant was properly substituted as claimant in this matter. Although the claim technically remains the Veteran's (with substitution of the appellant allowing for the submission of new evidence after the Veteran's death) the ultimate question is whether that claim will result in accrued benefits to the Appellant. To avoid confusion, the Board has continued to refer to the claim as it has been adjudicated to date. This claim was most recently remanded in December 2019 for the issuance of an addendum VA medical opinion, which was accomplished in February 2020. A review of the record shows substantial compliance with the Board’s prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). 1. VA’s Duty to Notify and Assist. The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a). Neither the Appellant nor her representative have identified any shortcomings or alleged prejudice in fulfilling VA’s duty to notify and assist. The Board is not required to search the record to address procedural arguments that a claimant has not raised. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In light of the foregoing, nothing more is required. 2. Service Connection for Accrued Benefit Purposes. The Appellant contends that the Veteran’s lung disorder was the result of in-service asbestos exposure. His claim for compensation was received by VA in November 2012. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish service connection, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to asbestos claims. However, VA has issued a circular on asbestos-related diseases. That Circular provides guidelines for considering compensation claims based on exposure to asbestos. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under those guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The guidelines provide that the latency period for asbestos-related diseases varies from 10 to 45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for service connection for diseases alleged to be related to asbestos exposure in service. Dyment v. West, 13 Vet. App. 141 (1999). In this matter, the Veteran had a diagnosis of a lung disorder. A review of the Veteran’s post service VA and private treatment records reveals diagnoses of numerous lung conditions, including emphysema, interstitial lung disease, chronic obstructive pulmonary disease (COPD), sleep apnea, atypical glandular epithelium in the left upper lobe, pulmonary infiltrates, peripheral ground glass opacity in the left apex, and left upper lobe pulmonary nodules, which were increasing in size and number. In addition, VA previously conceded in-service asbestos exposure based on the Veteran’s military occupation as a fire control specialist. Therefore, the two Shedden criteria are met and are not in dispute. The remaining issue is whether there is a causal connection between the lung disorder or disorders and military service, including the conceded asbestos exposure. The Board finds a preponderance of the probative evidence to be against the claim. Therefore, entitlement to service connection must be denied. The Board notes that the Veteran’s service treatment records (STRs) for his active duty period are unavailable for review. A review of the STRs related to Naval Reserve service show no complaints or treatment for any lung conditions or disorders. A review of the post-service VA and private treatment records note the aforementioned lung conditions. A May 2012 private clinical record includes the annotation that the has interstitial lung disease (ILD) that may be due to known asbestos exposure in the navy. A November 2012 VA clinical record includes the annotation that the Veteran reported that his pulmonologist from UVA diagnosed him with mesothelioma due to asbestos exposure in November 2012. A review of the medical records from UVA indicates VA contacted the Veteran's pulmonologist regarding the Veteran's assertion. The note indicates the physician explained to VA that the Veteran does not have mesothelioma but that he has “ILD presumed to be caused by previous asbestos exposure.” In December 2013, a clinical record includes the annotation that the Veteran had COPD and ILD secondary to asbestos exposure while in the Navy. An August 2014 record includes the annotation that the Veteran had previously carried a diagnosis of ILD thought to be related to asbestosis. It was written that the Veteran's prior physicians had left the practice and this physician was seeing the Veteran for the first time. The pertinent impression was history of asbestos exposure but no ILD asbestosis. The Veteran underwent a VA examination in March 2013. The Veteran was diagnosed with asthma, COPD, and benign or malignant neoplasm of the left lung. He reported a history of tobacco use from age 6 to age 55. He also reported being a fire control specialist and was involved in stripping the interior of his ship. Following service, the Vet reported he worked in installing insulation around pipes and in ceilings and that he was working with asbestos. No etiology opinion was rendered by the examiner. The Veteran’s June 2015 death certificate shows that he died from lung cancer and COPD. A VA medical opinion was produced in September 2019. Based on a review of the evidence of record, the examiner found no definitive diagnosis of lung cancer identified. In addition, the examiner found no objective evidence which decisively or definitively demonstrated bronchioalveolar carcinoma or other malignancy which could be linked to asbestos exposure. No other etiology opinion was rendered. An addendum VA medical opinion was issued in February 2020. The examiner gave a negative opinion that the various lung conditions were the result of military service, including in-service asbestos exposure. The examiner noted the Veteran’s history of tobacco use from age 6 to age 55. In addition, the examiner noted that a review of the medical literature listed smoking as the primary etiology for the Veteran’s various lung disorders (expect for his sleep apnea). The Board finds the VA opinions to be competent, credible, and probative. The examiners provided detailed rationale that took into consideration the Veteran’s lay statements and history, a clinical examination of the Veteran, and the evidence of record, and provided clear explanations that contained clear conclusions and supporting data. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds no adequate basis to reject the competent medical opinions based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Furthermore, the VA opinions are the only probative evidence that address the issue of medical nexus. Neither the Veteran nor the Appellant have submitted or identified any evidence demonstrating a positive medical nexus between the various lung conditions and military service. The Board notes there are the clinical records dated from 2012 to 2014 which include references to a lung disease and asbestos exposure in the Navy. The Board finds these records to not be probative. They are recitations of the Veteran's self-reported history without any actual analysis of the etiology of the disorder. The Board finds the reports of the VA examination to be more probative. The clinicians were tasked with determining the etiology of the Veteran's lung disorder. They examined the evidence in the claims file and provided an etiology which is supported by an adequate rationale in citations to the record including the Veteran's long history of smoking. The clinical records do not include any type of rationale for why it was determined that the lung disorder was linked to military service. Furthermore, the most recent statements in the clinical records reveals that, when the Veteran changed doctors, the current doctor did not find that the Veteran had a lung disorder linked to asbestos. In light of the negative nexus opinion and lack of probative positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran’s lung disorder. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran and Appellant contend that the lung disorder was the result of military service. While the Veteran may have been credible to describe the particular symptoms which he experienced, determining the exact nature and diagnosis of his lung disorder required specialized testing and medical knowledge or training which the Veteran and Appellant have not been shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, they cannot provide a probative opinion as to etiology in such cases. The Board finds that the pertinent evidence of records shows that the lung disorder is not the result of military service. Since the preponderance of the probative evidence weighs against the claim, the Appellant is not entitled to the benefit of the doubt. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, service connection is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.