Citation Nr: 21013658 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-25 247 DATE: March 10, 2021 ORDER Service connection for a respiratory disability, to include as due to in-service exposure to diesel fuel, sand/dust, and/or asbestos is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 23, 2020 is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s respiratory disability began during active service, or is otherwise related to service, to include in-service exposure to diesel fuel, sand/dust, and/or asbestosis. CONCLUSION OF LAW The criteria for an award of service connection for a respiratory disability, claimed as due to in-service exposure to diesel fuel, sand/dust, and/or asbestosis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1964 to April 1969, to include service in Vietnam. He had additional service in the United States Coast Guard Reserve. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In August 2019, the Veteran and his spouse testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In January 2020, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. In November 2020, while the current appeal was pending, the AOJ granted service connection and a 100 percent rating for prostate cancer, effective September 23, 2020. In light of that award, the TDIU issue has been recharacterized as pertaining to the period prior. See, e.g., Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board notes that the AOJ furnished the Veteran a supplemental statement of the case (SSOC) relative to the matter herein decided in November 2020. Although additional VA-generated evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the issue that is current being decided. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). Service connection for a respiratory disability is denied. The Veteran seeks to establish service connection for a respiratory disability. He believes that he has a current respiratory disorder that may be related to in-service exposure to diesel fuel, sand/dust, and/or asbestos. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). In general, for claims involving exposure to asbestos, VA must determine whether military records demonstrate evidence of exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between in-service exposure and the claimed disease. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, and an asbestos-related disease can develop from brief exposure to asbestos. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the veteran’s present condition (e.g., whether the veteran’s condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See 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 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 (1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The record reflects that the Veteran has a current respiratory disability. See, e.g., October 2020 VA examination report (showing a diagnosis of chronic obstructive pulmonary disease (COPD)). Accordingly, the element of a current disability has been established. The Board concludes that while the Veteran has a current diagnosis of COPD, the preponderance of the evidence is against a finding that the currently diagnosed respiratory disability began in service or is otherwise causally or etiologically related to service, to include in-service exposure to diesel fuel, sand/dust, and/or asbestos. Service treatment records do not contain any complaints of, treatment for, or diagnosis of COPD or any other respiratory disorder during service, except for a transient upper respiratory infection on April 2, 1969. The April 21, 1969 service separation examination report shows a normal clinical evaluation of the lungs and chest, and an x-ray of the chest was noted as normal. A concurrent report of medical history shows that the Veteran denied having shortness of breath, pain or pressure in chest, chronic cough, or asthma. At the August 2019 Board hearing, the Veteran reported that he started having respiratory problems in service. To the extent that the Veteran now asserts that his respiratory disability started in service and has continued since, the Board finds that such assertions are contradicted and outweighed by his own contemporaneous reports at service separation, as discussed above. In this regard, the Board is not relying on the absence of evidence, but rather on the contemporaneous, affirmative lay report of symptoms and history by the Veteran, as well as contemporaneous medical assessments of the lungs during service and at service separation. Post-service treatment records reflect that the Veteran’s first post-service complaints of respiratory problems occurred decades after service separation. At the August 2019 Board hearing, the Veteran reported that he starting seeking medical treatment for his respiratory condition around the year 2000, which is decades after separation from active service. The multi-year gap between discharge from active duty service and when the Veteran sought medical care for his respiratory disability is a factor that weighs against in-service onset. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). With respect to the Veteran’s contention that his respiratory disability was caused by in-service exposure to diesel fuel, sand/dust, and/or asbestos, the Board finds that the evidence is in relative equipoise as to whether the Veteran experienced the above-referenced exposures during service. His DD Form 214 shows that his military occupational specialty (MOS) was general vehicle repairman. Moreover, service personnel records show that he worked as a vehicle mechanic and a recovery specialist during service, and that he served in Germany. His assertions regarding exposure to diesel fuel fumes, sand/dust, and asbestos during service are plausible because they are consistent with the circumstances of his service. Upon review of the evidence, both lay and medical, the Board finds that the record contains no probative evidence that the Veteran currently has asbestosis or has ever had asbestosis or an asbestos-exposure related disease for any portion of the pendency of the claim. Indeed, VA and private treatment records are negative for any complaints or diagnoses of an asbestos-exposure related lung disease. In addition, an October 2020 VA examiner opined that the Veteran’s respiratory disability was less likely than not related to an in-service injury, event, or disease, including in-service exposure to diesel fuel, sand/dust, and/or asbestos. The rationale was that a review of the record revealed no objective evidence to support the presence of these pulmonary conditions during service or any relationship to any potential exposure including diesel fuel, sand/dust, and/or asbestos. The examiner noted that the Veteran was initially diagnosed with COPD at least as far back as 2012 with a history significant for a 40-pack year history of tobacco abuse, which is the primary risk factor for development of COPD. The examiner explained that the Veteran developed recurrent pleural effusions of unknown etiology eventually prompting thoracentesis followed by thoracotomy in 2015 revealing chronic pleuritis. It was noted that clinical notes at that time noted imaging from 2006 with no evidence of pleuritis, fibrosis, or effusions prompting discussion that the findings arose from an infectious process between 2006 and onset of the effusions. It was further explained that there was no objective evidence of any relationship between the pleuritis and any possible exposure during service. The October 2020 VA examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In support of his claim, the Veteran submitted a November 2020 prescription note from Dr. W.S., which noted that the “[p]atient has COPD [and] respiratory illness [due] to asbestosis exposure from the military.” The Board finds that this evidence lacks probative value for several reasons. First, the statement is written on a prescription blank that was marked as “void.” Next, the statement notes that the Veteran’s respiratory disease is due to “asbestosis exposure,” which is facially erroneous because asbestosis is a lung disease caused by exposure to asbestos, and the record demonstrates that the Veteran has not been diagnosed with asbestosis. Finally, to the extent that the statement in the November 2020 prescription note purports to offer an opinion that the Veteran’s respiratory disability was caused by in-service exposure to asbestos, such opinion is of no probative value because it is not supported by a rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion that is unsupported by a coherent rationale is of no probative value). Based on the foregoing, the Board accords more probative weight to the October 2020 VA negative nexus opinion. The Veteran believes that his respiratory disability is related to exposure to diesel fuel, sand/dust, and/or asbestosis in service. However, he is not competent to provide a nexus opinion in that regard. The issue is medically complex, as it requires knowledge of the respiratory system and the relationship between the current respiratory disability and smoking versus other past environmental exposures. The matter is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials necessary to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2020 VA opinion. In light of the foregoing, the Board must find that the preponderance of the evidence is against a finding that the Veteran’s current respiratory disability began in service or is otherwise causally or etiologically related to service, to include in-service exposure to diesel fuel, sand/dust, and/or asbestosis. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Entitlement to a TDIU prior to September 23, 2020 is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claim and to afford him every possible consideration. The Veteran seeks entitlement to a TDIU. Prior to September 23, 2020, he asserted that he was unemployable due to his service-connected posttraumatic stress disorder (PTSD) and diabetes disabilities. See, e.g., July 2015 TDIU claim (VA Form 21-8940). Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). The record reflects that the Veteran has reported intermittent work as a substitute custodian at a local school. See, e.g., August 2017, January 2018, and April 2019 VA treatment records. An October 2020 VA PTSD examination report shows that he reported that he retired from his work as a truck driver in 2009, that he worked as a substitute custodian thereafter, and that he stopped working in February 2020 due to COVID-19. On the current record, it is unclear whether the Veteran’s part-time employment as a custodian for the period from July 2014 to February 2020 was marginal or substantially gainful employment. Accordingly, the Board finds that further development is required before adjudicating the merits of the TDIU claim. Specifically, the AOJ should obtain from the Veteran a summary of his earnings for the period from July 2014 to February 2020. This matter is REMANDED for the following action: 1. Request that the Veteran provide a summary of his earnings for the period from July 2014 to February 2020, as well as any evidence of such earnings, to include tax returns, Social Security earnings summaries, and paystubs. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.