Citation Nr: 21010565 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-21 235 DATE: February 25, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include as being due to in-service exposure to asbestos, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a respiratory disorder, to include symptoms that cause functional impairment of earning capacity, and against a nexus between a respiratory disorder and service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include as being due to in-service exposure to asbestos, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.655(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1981 to March 1988. The evidence shows that the Veteran had requested a hearing before the Board, which hearing was scheduled in November 2017. He was sent a reminder for the hearing, and he responded that he would attend the hearing. On the day of the hearing, the Veteran cancelled his hearing request. Thus, there is no hearing request pending at this time. In August 2018, the Board of Veterans’ Appeals (Board) remanded the issue of entitlement to service connection for a respiratory disorder to provide the Veteran with a VA examination. A supplemental statement of the case was issued in August 2020. The case now returns to the Board for further proceedings. Service Connection 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Entitlement to service connection for a respiratory disorder, to include as being due to in-service exposure to asbestos The Veteran is seeking service connection for a respiratory disorder, which he asserts is due to in-service exposure to asbestos. A review of the service treatment records reflects that his military occupational specialty was a self-propelled field artillery system mechanic. In an April 2013 statement, the Veteran indicated that he not only lived in barracks from World War II, but that his duty occupation exposed him to brake dust from drum brakes, cleaning brake parts, and contact to the dust and debris falling on his face while working underneath vehicles. Following the August 2018 Board remand, a VA examination was scheduled for March 2019, but the Veteran did not show up for the examination. A VA examination was rescheduled for September 2019, but the Veteran again did not appear. An April 2020 report in the record shows the Veteran was contacted regarding this missed examination, and he stated he had moved to Arizona, and then moved back to Missouri. The Board notes that the March 2019 VA examination was scheduled in Arizona, and the September 2019 VA examination was scheduled in Missouri, and thus VA scheduled examinations based on where the Veteran was living at the time. Nonetheless, a third VA examination was scheduled in Missouri in August 2020. The Veteran stated he would make it to the examination when contacted, but, for a third time, he failed to show. At this point, the Veteran has failed to appear for three VA scheduled examinations, and the Board finds that VA’s duty to assist has been met. Further supporting the decision not to remand the case again to schedule a fourth examination, the Veteran had also informed VA he would appear for the November 2017 Board hearing and then cancelled on the day of the hearing. Under 38 C.F.R. § 3.655(b), it states that when a veteran fails to report for a VA examination in connection with an original claim, the claim will be decided based on the evidence of record. Thus, the Board will decide the claim based on the evidence of record. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a respiratory disorder. The reasons follow. Initially, the Board notes that, as stated within the August 2018 remand, it had conceded the Veteran was exposed to asbestos during service based on his described mechanic duties based on his military occupational specialty of self-propelled field artillery system mechanic. VA recognizes that the servicing of friction projects such as brake linings involve exposure to asbestos. See VA Adjudication Procedures Manual (M21-1MR), Part IV.ii.2.C.2.d. Thus, the in-service disease or injury element is met. However, the Board finds that the preponderance of the evidence is against the other two elements of service connection, such as evidence of a current disability and evidence of a nexus between the current disability and service. The Board will address each element separately to explain how it reached these conclusions. As to evidence of a current disability, VA treatment records reflect diagnoses of acute respiratory infections and bronchitis, but these records are from more than three years prior to the Veteran’s April 2013 claim for service connection and not in close proximity to when the claim was filed. For example, he was diagnosed with acute bronchitis in December 2004, December 2006, and November 2008. August and September 2009 private medical records show a diagnosis of an acute respiratory infection. However, since 2009, the preponderance of the evidence is against ongoing respiratory infections or symptoms. For example, when seen for refills for medications for hypertension in February 2010, a review of systems show that the Veteran denied shortness of breath, cough, hemoptysis, and wheezing. The physical examination showed that the Veteran’s respiratory system was clear to auscultation and percussion, normal respiratory effort, and no fremitus. In November 2010, when the Veteran presented to VA for lab results, the examiner documented that the Veteran’s lungs were clear to auscultation and percussion, and there was no dyspnea. In December 2011, when the Veteran was seen by VA seeking a wrist splint, the examiner documented that the Veteran’s lungs were clear for breath sounds. A similar finding was documented in a January 2012 VA treatment record. An October 2012 VA treatment record shows that the Veteran reported a history of alleged asbestos exposure, and the examiner documented that the Veteran’s lungs were clear and equal, bilaterally. Thus, the preponderance of the evidence is against a finding that the Veteran has a respiratory disorder in close proximity to when he filed the claim for service connection in April 2013. The preponderance of the evidence is also against a diagnosis of a respiratory disorder after the April 2013 claim was filed. In fact, respiratory examinations performed while the Veteran was seeking treatment at VA (for other medical symptoms) continued to show normal respiratory findings including clear lung sounds. See VA treatment records dated in 2013, 2014, and 2016. For these reasons, the Board finds the preponderance of the evidence in the record is against finding that the facts establish a current respiratory disorder to include symptoms that cause functional impairment of earning capacity. However, even assuming that the Veteran has a current respiratory disorder or symptoms that cause functional impairment of earning capacity, the preponderance the evidence of the evidence is against a nexus between a respiratory disorder and service. Specifically, the Board finds that the there is no competent and credible opinion in the record establishing that a respiratory disorder or symptoms are related to the Veteran’s service, to include asbestos exposure in service. As explained above, the Veteran failed to show up for three scheduled VA examinations following the August 2018 Board remand. Therefore, there is no nexus opinion from a medical professional. The Board further notes that physical examinations following the April 2013 claim filing showed normal respiratory findings including clear lung sounds, which weighs against a finding a nexus between a current disability and service. Additionally, the evidence currently in the file shows that the Veteran first sought treatment for a respiratory disorder in December 2004, which is over 16 years following service discharge and does not lend to a finding that respiratory symptoms are related to service. While the Veteran is competent to report respiratory symptoms that he has experienced, he is not competent to diagnose a current respiratory disorder or establish a nexus between any current respiratory disorder and service, as medical expertise is required. In this regard, the question of diagnosis and causation involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Therefore, as the evidence does not support a relationship between a current respiratory disorder and service, and the nexus element is not met. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for a respiratory disorder, to include as being due to in-service exposure to asbestos. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton 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.