Citation Nr: 21070213 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-14 267 DATE: November 23, 2021 ORDER Entitlement to service connection for pancreatitis is denied. Entitlement to service connection for a liver disorder is denied. REMANDED Entitlement to service connection for a cardiovascular disorder, to include as due to inservice exposure to ionizing radiation and/or asbestos is remanded. Entitlement to service connection for hypertension, to include as due to inservice exposure to ionizing radiation and/or asbestos is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to inservice exposure to ionizing radiation and/or asbestos is remanded. Entitlement to service connection for an aneurysm, to include as due to inservice exposure to ionizing radiation and/or asbestos is remanded. Entitlement to service connection for an esophageal disorder, to include as due to inservice exposure to ionizing radiation and/or asbestos is remanded. FINDINGS OF FACT 1. At no time during the pendency of the claim, prior to his death, did the Veteran have a current disability of the pancreas, and the record does not contain a recent diagnosis of disability prior to the filing of the claim. 2. At no time during the pendency of the claim, prior to his death, did the Veteran have a current disability of a liver disorder, and the record does not contain a recent diagnosis of disability prior to the filing of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for pancreatitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a liver disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1951 to January 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2012 by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. The Veteran passed away in May 2017. The appellant, the Veteran's surviving spouse, was granted substitution for the Veteran's pending claims by the Agency of Original Jurisdiction (AOJ) in December 2017. Prior to his death, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2015. A transcript of that hearing is included in the claims file. These matters were previously before the Board in January 2016, at which time they were remanded for further development, to include VA examinations. They returned to the Board in January 2021; however, the Board found that the examination reports obtained as a result of its previous remand were inadequate. The claims were then remanded for new medical opinions, which were obtained in July 2021. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). However, in all claims for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records are silent as to any complaints of, treatment for, or diagnosis of any pancreas or liver condition. Post-service, a January 1985 private treatment note indicated that the Veteran was experiencing upper abdominal pain which was diagnosed at that time as acute pancreatitis. In January 2001, the Veteran was seen for his aneurysm condition; at that time, abdominal imaging showed his liver was normal, except for a single small cyst in the dome of the liver. Review of the Veteran's remaining medical records do not indicate that the Veteran's pancreatitis recurred, or that he developed any liver disorder, at any point prior to his death, to specifically include during the applicable appeal period. In the July 2021 VA examination report, the clinician noted that the Veteran did not have a diagnosis of a pancreas or kidney condition, and the treatment records were silent as to any such condition. The Board acknowledges a December 2010 statement from Dr. W.R.G., the Veteran's treating physician, in which he determined that the Veteran's "medical problems" were due to his military service. This letter was interpreted at the time to mean all of the conditions for which the Veteran was seeking service connection, to include any pancreas and liver conditions. However, the Board can afford no probative weight to this statement, as it is based on the inaccurate factual premise that the Veteran, in fact, had such diagnoses. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). While the Board is not allowed to ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement, and does so here. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). Moreover, the Veteran and appellant, as lay persons, are not competent to offer a diagnosis of such conditions, as they are not shown to possess the requisite specialized knowledge necessary for such. In this regard, a diagnosis requires the administration and interpretation of diagnostic tests. Therefore, as it is a complex medical question, the Veteran and appellant are not competent to diagnose a pancreas or liver disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Consequently, their assertions as to the presence of a pancreas or liver condition are afforded no probative weight. Based on the foregoing, the Board finds that at no time during the pendency of the claim, prior to his death, did the Veteran have a current disability of a pancreas or liver condition, and the record does not contain a recent diagnosis of disability prior to the filing of the claims. McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claims are denied. REASONS FOR REMAND Entitlement to service connection for a cardiovascular disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for COPD is remanded. Entitlement to service connection for an aneurysm is remanded. Entitlement to service connection for an esophageal disorder is remanded. As noted above, in its January 2021 remand, the Board found previous medical examination reports to be inadequate, and requested new medical opinions regarding the appellant's claims. In July 2021, medical opinions were obtained. Unfortunately, the Board finds that the July 2021 medical opinions concerning the appellant's remaining claims are inadequate and, thus, additional remand is required in this case. While the Board sincerely regrets the additional delay, in light of the number of previous remands and the age of not only the claim but the appellant herself, it finds that such is necessary to ensure that there is a complete record upon which to decide the claims and afford the appellant every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As noted by the Board in its January 2021 Remand, the Veteran alleged during his December 2015 Board hearing that his claimed disorders were incurred as a result of in-service exposure to asbestos. The Board determined that the Veteran's service personnel records established that he served as a heavy truck driver during his active duty service. According to VA guidance documents, the duties of a heavy truck driver, reasonably interpreted as a construction driver, result in "probable" exposure to asbestos. Consequently, the Board acknowledged that the Veteran experienced a "probable" degree of asbestos exposure as a result of his in-service duties. In its remand instructions, the Board asked the selected clinician to address this probable exposure. In the resulting July 2021 opinion, the clinician merely concluded that each of the Veteran's claimed conditions were less likely than not due to his military service, as they were not diagnosed in service nor was there "continuity of symptoms" after service. The Board notes that the clinician repeated this conclusion, verbatim, in response to each of the Board's remand instructions. There was no mention of the Veteran's probable asbestos exposure. Thus, the July 2021 opinion is wholly inadequate for purposes of deciding the appellant's claims. First, the clinician did not comply with the Board's specific instructions to address the Veteran's probable asbestos exposure. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers upon claimants, as a matter of law, the right to compliance with the remand instructions). Second, the examiner based her opinion on a lack of any in-service treatment, and disregarded the Veteran's statements concerning the onset of his various conditions, as well as the evidence in the Veteran's service personnel records of probable in-service asbestos exposure. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Finally, in concluding that it was less likely than not that any of the conditions were due to the Veteran's military service, the clinician failed to provide any explanation for her conclusions, depriving the Board of a rationale on which it could rely when evaluating the appellant's claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). As noted in its previous remand, holding that once VA undertakes the effort to provide an examination for a service-connection claim, it must provide one that is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because the VA opinions of record were clearly based exclusively on a lack of evidence of the claimed conditions in the service treatment records, and failed to consider both the Veteran's lay statements and the evidence in the service personnel records of probable in-service asbestos exposure, new VA opinions are once again warranted. The matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to a VA clinician (other than the ones who provided opinions in February and August 2021, if possible) for an opinion regarding the nature and etiology of the Veteran's cardiovascular disorder, hypertension, COPD, aneurysm, and esophageal disorder. Following a thorough review of the record, the clinician is asked to provide separate opinions as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's (a) cardiovascular disorder; (b) hypertension; (c) COPD; (d) aneurysm; and (e) esophageal disorder developed as a result of his active duty service, to include in-service exposure to asbestos. In forming his or her conclusion regarding each of the diagnosed conditions (a) (e), the selected clinician should be aware of the following: (1) the Veteran had a "probable" level of asbestos exposure during service while performing his duties as a heavy truck driver; and (2) pursuant to VA guidance documents, the latency period for the development of asbestos-related diseases ranges from 10 to 45 or more years between first exposure and development of disease. The examiner is advised that the sole basis of a negative opinion may not be the lack of complaints, treatment, or diagnosis referable to any such conditions in the Veteran's service treatment records. A detailed and fully-supported rationale for any opinion offered must be provided. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.