Citation Nr: 21021466 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-45 946 DATE: April 13, 2021 ORDER Entitlement to service connection for a pulmonary condition, to include emphysema, to include as due to asbestos exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s pulmonary condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a pulmonary disability are not met. 38 U.S.C. §§ 1110, 1131, 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 Air Force from November 1948 to September 1952. In September 2017, the Board remanded this matter for further development. As noted in the September 2017 remand, the Veteran initially requested a hearing before a Veterans Law Judge with respect to the issue on appeal. See December 2015 VA Form 9; March 2017 VA Form 9. Such a hearing was scheduled in June 2017. However, prior to the scheduled hearing, the Veteran submitted written correspondence stating that he would be moving to Texas and could not attend the hearing. He did not request that the hearing be rescheduled. The Board proceeded as though the original hearing request was withdrawn. The September 2017 Board remand requested the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA medical records, verify the Veteran’s current address, ask the Veteran to identify any private medical providers and sign an authorization for release of private medical records, and to provide the Veteran with a VA pulmonary examination. The record shows that the AOJ sent letters to the Veteran’s last known address in May 2019, November 2019, and January 2020 asking the Veteran to submit additional evidence to support his appeal. No response has been received. In July 2019 and November 2019, the AOJ attempted to verify the Veteran’s address. Responses received did not produce an address other than the address currently on file. In July 2019 and January 2020, the AOJ attempted to contact the Veteran via telephone to no avail. The AOJ attempted to reach the Veteran’s emergency contact but the number was not in service. In January 2020, the AOJ contacted the Veteran’s agent, but the agent did not have any other address information other than the address already on file. In October 2019, the Veteran was sent notice of a VA examination. The Veteran was scheduled for a VA examination in November 2019, but the Veteran did not appear for this examination. The Veteran has not contacted VA to explain why he did not attend the examination or to request a new examination. In sum, the AOJ has made several attempts to contact the Veteran by mail and by telephone, and through the Veteran’s agent and emergency contact, but there has been no contact with the Veteran. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection 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). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Entitlement to service connection for a pulmonary condition, to include emphysema, to include as due to asbestos exposure The Veteran contends that his current pulmonary condition, to include emphysema, was incurred in service as a result of exposure to various substances, including chemicals and asbestos, during the course of his duties as an aircraft engine mechanic. During service, the Veteran’s Service Treatment Records (STRs) are silent for complaints or treatment for a pulmonary condition. The Veteran’s Service Personnel Records (SPRs) show a military occupational specialty of aircraft engine mechanic, consistent with exposure to jet fumes and other chemicals. As noted in the November 2015 Statement of the Case, this occupation is also associated with a certain probability of asbestos exposure. The Board finds the Veteran’s statements are consistent with his SPRs, and this evidence establishes an in-service event of exposure to chemicals. However, this evidence does not establish that the Veteran’s current condition was caused by this in-service exposure. The Veteran has submitted a handwritten prescription from his private physician, indicating that the Veteran has emphysema and a history of working in the Air Force with chemical exposure. This prescription note does not appear to directly state that the Veteran’s current emphysema was caused by his exposure to chemicals during service. To the extent this note may suggest a connection between active duty chemical exposure and his current emphysema, no rationale is provided to support this opinion. The Board finds this evidence is sufficient to establish that the Veteran has a current pulmonary condition. However, regarding the question of whether this condition is related to service, the Board assigns no probative weight to the private physician handwritten note, as it does not directly connect the condition to service and provides no rationale to support such a conclusion. See Miller v. West, 11 Vet. App. 345 (1998) (a mere conclusion without an underlying rationale is of no probative value). While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, remand for an additional VA examination is not warranted. In this case, as entitlement cannot be established or confirmed without a current VA examination, and the Veteran, without good cause, failed to report for a scheduled examination, the claim shall be decided based on the evidence of record. 38 C.F.R. § 3.655(b). The Board acknowledges the lay statements made by the Veteran indicating that his pulmonary condition is related to service. The Veteran is competent to provide testimony concerning factual matters of which they have first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, a layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA has made multiple attempts to assist in the development of this claim, including attempting to provide the Veteran with a VA pulmonary examination and medical opinion. The Veteran was provided with notice of the examination and did not appear. Consequently, adjudication on the merits of the existing record is proper. The medical evidence of record first notes a diagnosis of emphysema in 2012, 60 years after his separation from service in 1952. The record lacks any competent evidence which shows a relationship between his current emphysema and exposure to chemicals 60 years prior. Therefore, as no evidence has been presented to show any relation between the Veteran’s service and his pulmonary disability, service connection must be denied. As the Veteran, without good cause, failed to appear for VA examination, and as entitlement to service connection for a pulmonary disability cannot be established without a current VA examination, the Board will adjudicate on the basis of the evidence of record. The Board finds that the preponderance of the evidence is against a finding that any current pulmonary disability is related to service, any event, injury, or disease during service, or any service-connected disability. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.