Citation Nr: 21063959 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-53 657 DATE: October 18, 2021 ORDER Entitlement to service connection for pulmonary fibrosis to include as secondary to asbestos exposure for substitution purposes is granted. Entitlement to service connection for tinnitus for substitution purposes is denied. FINDINGS OF FACT 1. The Veteran had pulmonary fibrosis which was as likely as not related to asbestos exposure during service. 2. The Veteran reported he did not experience recurrent tinnitus. CONCLUSION OF LAW 1. Resolving doubt in favor of the Veteran, the criteria for service connection for pulmonary fibrosis to include as secondary to asbestos exposure for substitution purposes has been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012) 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2020). 2. The criteria for entitlement to service connection for tinnitus for substitution purposes have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1962 to May 1968. He died in December 2020. The appellant is the Veteran's surviving spouse and she has been determined to be a valid substitute claimant. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Laws and Regulations 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. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Pulmonary Fibrosis Factual Background and Analysis The appellant contends that the Veteran's pulmonary fibrosis was the result of his in-service asbestos exposure while he served aboard various ships while in the US Navy. In the instant case, the Veteran's DD Form 214 confirms his military occupational specialty (MOS) as Electrician's Mate (EM-0000), which VA acknowledges results in probable exposure to asbestos. In August 2014, a private physician opined that the Veteran's pulmonary fibrosis was "most likely related to prolonged asbestos exposure". In an April 2021 correspondence, a private physician noted that the Veteran was exposed to various toxins, solvents and asbestos while in the Navy for many years which may have contributed to his pulmonary fibrosis. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for pulmonary fibrosis for substitution purposes is warranted. Initially, the Board notes that there was a diagnosis of pulmonary fibrosis. Thus, the first element for service connection is established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The personnel records again show that the Veteran had an MOS of an Electrician's Mate and served aboard Naval ships such as the U.S.S. Tirante. Although there is no official documentation showing that the Veteran was exposed to asbestos, the Board finds that the Veteran was competent and credible to describe his experience working as an electrician's mate aboard naval ships. As a result, when considering the circumstances of the Veteran's service, the Board finds that the Veteran had in-service asbestos exposure. This case turns on the remaining element of service connection, which is whether the Veteran's pulmonary fibrosis was related to his military service. The Board notes that the August 2014 physician provided a positive medical opinion as he again opined that the Veteran's pulmonary fibrosis was "most likely related to prolonged asbestos exposure". Additionally, a private physician in an April 2021 correspondence found that the Veteran was exposed to various toxins, solvents and asbestos while in the Navy for many years which may have contributed to his pulmonary fibrosis. Additionally, there is no competent contrary medical evidence of record that indicates that the Veteran's pulmonary fibrosis disability was not a result of his in-service asbestos exposure. Therefore, the positive medical opinions of the August 2014 and April 2021 physicians provide the only competent medical opinions as to the relationship between the Veteran's pulmonary fibrosis disability and his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a pulmonary fibrosis for substitution purposes is granted. See 38 U.S.C. § 5107(b). Tinnitus The Veteran claimed entitlement to service connection for tinnitus. The Veteran was afforded a VA examination for tinnitus in June 2016. The examiner indicated that the Veteran did not report that he experienced recurrent tinnitus. The VA examiner found that the Veteran "denied tinnitus and there is no diagnosis of tinnitus". Under the first element of Shedden, a current diagnosis is required to establish entitlement to service connection. With regards to tinnitus, the Veteran was competent to report his symptoms, such as ringing ears. See Layno, supra. However, the Veteran reported to the VA examiner that he did not experience recurrent tinnitus and the examiner specifically noted that no diagnosis of tinnitus was provided. Given the lack of a tinnitus diagnosis, or any report by the Veteran that he experiences tinnitus, the first element of Shedden has not been established. Accordingly, the claim is denied and there is no doubt to resolve. 38 U.S.C. § 5107 (b); Gilbert, supra. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.