Citation Nr: 21021983 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-10 556A DATE: April 14, 2021 ORDER Entitlement to service connection for amyotrophic lateral sclerosis (ALS) is denied. REMANDED Entitlement to service connection for allergies is remanded. Entitlement to service connection for a respiratory disability, to include asthma and breathing problems, is remanded. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran has been diagnosed with amyotrophic lateral sclerosis (ALS). CONCLUSION OF LAW The criteria for entitlement to service connection for amyotrophic lateral sclerosis (ALS) have not been met. 38 U.S.C. § §§ 1101, 1110; 38 C.F.R. § §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to September 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to service connection for amyotrophic lateral sclerosis (ALS) Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that amyotrophic lateral sclerosis (ALS) is due to in-service asbestos exposure. As an initial matter, the Board notes that in a February 2021 VA memorandum, the Veteran was not found to be exposed to asbestos while in service. The Board also notes that there is no evidence of record to corroborate the contention that the Veteran was exposed to asbestos while in service. During the course of this appeal, VA requested that the Veteran provide information on how, where, and when he was exposed to asbestos during service. To date, VA has not received either a response from the Veteran or pertinent medical evidence or medical records that would support the claim. Therefore, asbestos exposure is not conceded. The Board further finds that the evidence of record does not show that the Veteran has been diagnosed with amyotrophic lateral sclerosis (ALS). Therefore, as the preponderance of evidence is against a finding that the Veteran has a current ALS diagnosis or has had ALS contemporary to the claims period, the claim for service connection must be denied. The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the evidence of record shows no evidence of a current amyotrophic lateral sclerosis diagnosis. The service medical records were reviewed and show no treatment for or diagnosis of ALS while in-service. An analysis of post-service medical records does not show any amyotrophic lateral sclerosis diagnosis in the evidence of record. The Veteran has not submitted any competent evidence that demonstrates a diagnosis of ALS during the claim period. The Board notes that, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Veteran has claimed that he has been diagnosed with ALS related to asbestos exposure. However, the Board finds that the Veteran, as a lay person, is not competent to provide a diagnosis for a complex disability dealing with nervous system issues, and thus is not competent to diagnose a neurodegenerative disease. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not submitted competent evidence that supports a finding of a current ALS diagnosis. The Board notes that a VA medical opinion has not been obtained in connection with the claim. 38 U.S.C. § 5103A(a). A VA medical examination is not required as a matter of course in virtually every case. Where only a conclusory generalized statement is provided by the Veteran, an examination may not be required. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when an opinion is necessary to substantiate the claim for a benefit. Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Here, the claims file contains the Veteran’s general lay assertions that link an ALS diagnosis to asbestos exposure in-service. There is no evidence of record that suggests a current ALS diagnosis, exposure to asbestos in service, or any possible connection between the two. Thus, the Board does not find it necessary to obtain a medical opinion, as there is no reasonable possibility that it would substantiate the Veteran’s claim. 38 C.F.R. § § 3.159(c)(4). VA is not obligated to grant a claim for benefits simply because there is no evidence disproving it. A claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107; Skoczen v. Shinseki, 564 F.3d 1319 (2009); Fagan v. Shinseki, 573 F.3d 1282 (2009). Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street, and it is important that the Veteran make efforts to assist VA in gathering evidence relevant to the claim. Woods v. Gober, 14 Vet. App. 214 (2000); Hurd v. West, 13 Vet. App. 449 (2000). The Board finds that the Veteran’s bare assertion, without more, that he has an alleged disability due to his service does not require more of VA’s duty to assist. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all Veterans in disability cases involving nexus issues simply because there are lay statements that the condition is linked to service). There is no evidence of the claimed disability or any indication of an association to service. There is sufficient competent evidence of record for the Board to make a decision on the claim. Therefore, VA’s duty to provide an examination with an opinion is not triggered. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). After a careful review of the evidence of record, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for ALS. None of the Veteran’s medical treatment providers have given any indication that the Veteran has been diagnosed with ALS and the Veteran has not submitted any competent medical evidence which supports the claim of a current ALS diagnosis or shows a relationship between any current ALS disability and service. In the absence of competent medical evidence finding a current amyotrophic lateral sclerosis (ALS) diagnosis, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board is appreciative of the Veteran’s faithful and honorable service to our country. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against a finding of any current diagnosis for amyotrophic lateral sclerosis related to active service. Therefore, the claim of service connection for amyotrophic lateral sclerosis must be and is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for allergies is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for allergies. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that allergies are the result of service. Specifically, the Veteran asserts that an allergy condition is secondary to asbestos exposure. To date, asbestos exposure has not been conceded by VA. During a March 2020 VA examination, the examiner found that the claimed allergy condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed event, injury, or illness in service. The examiner supported that conclusion by stating that the Veteran’s symptoms were subjective only. The objective examination was normal. There was no objective evidence of a chronic condition. A nexus had not been established. The examiner acknowledged that record provided some indication of having hay fever prior to service, but stated that the documentation of record was silent for any chronicity of care for hay fever during service. By review, it was less likely the hay fever was aggravated beyond the natural progression during service. It was less likely the Veterans upper respiratory infections (URI) or colds treated during service were related to current sinusitis or rhinitis. By review, the Veterans URI appeared acute and resolved. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. As the March 2020 VA examiner relied on the absence of symptoms or treatment in-service for the negative opinion, the opinion is inadequate. Also, the examiner acknowledged that the Veteran may have had hay fever prior to service, but did not opine whether it is clear and unmistakable that any clearly and unmistakably preexisting allergy condition was not aggravated (worsened beyond the natural progress of the disease). Further, the VA examiner does not appear to have considered the Veteran’s contentions regarding an allergy condition, as that was not addressed in the rationale. The VA examiner appears to have based the opinion solely on the objective evidence of record. Because the examiner did not discuss or consider whether there is any subjective evidence or lay evidence to support a theory that the Veteran’s allergy condition was related to his service, the Board finds the examination to incomplete. Accordingly, the Board finds March 2020 VA examination report to be incomplete for rating purposes.  That is a pre-decisional duty to assist error. Therefore, the Board finds that remand is necessary for an adequate etiology opinion regarding the claimed allergy disability.  2. Entitlement to service connection for a respiratory disability, to include asthma and breathing problems, is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a respiratory condition. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that he has asthma and breathing problems due to asbestos exposure during service. Asbestos exposure has not been conceded by VA. At a March 2020 VA examination, the examiner found that the claimed respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner explained that a record review was silent for any exposure to or mention of asbestos exposure while in service. There was no diagnosis of asbestosis, including no chest X-ray confirming asbestosis. The record review is also silent for any onset of or treatment for asthma during active duty. The examiner opined that it was less likely the Veteran's asthma started during service and it was not caused by or secondary to asbestosis. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. As the March 2020 VA examiner relied on the absence of symptoms or treatment in-service for the negative opinion concerning the demonstrated disability, the opinion is inadequate. The record indicates the Veteran as having multiple in-service upper respiratory infections, but the examiner did not address whether those events in service have any relation to any current disability. Additionally, the evidence of record suggests that the Veteran had childhood asthma, but the examiner did not opine whether it is clear and unmistakable that any clearly and unmistakably preexisting respiratory condition was not aggravated (worsened beyond the natural progress of the disease). Accordingly, the Board finds March 2020 VA examination report to be incomplete for rating purposes.  That is a pre-decisional duty to assist error. Therefore, the Board finds that remand is necessary for an adequate etiology opinion regarding the claimed respiratory disability.  The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for the claimed conditions. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims folder. 2. Then, schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of a claimed allergy condition. The examiner must review the claims file, including this Remand and the Board’s August 2019 Remand, and should note that review in the report. The examiner should address the lay statements of record regarding the claimed disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. The examiner should provide the following opinions, based on the record: (a) Did an allergy condition clearly and unmistakably (medically undebatable) preexist entrance to active service? The examiner should state what evidence supports that opinion. (b) If an allergy condition is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that a preexisting allergy condition was not aggravated (worsened beyond the natural progress of the disease) during service. (c) For any allergy condition that is found to not have clearly and unmistakably preexisted entrance to active service, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the allergy condition is etiologically related to active service or any event, disease, or injury during service, including whether an allergy condition (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. The examiner must discuss any significance of the Veteran’s reported upper respiratory infections in service, as it pertains to the current allergy diagnosis. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. 3. Schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of the claimed respiratory disability. The examiner must review the claims file, including this Remand and the Board’s August 2019 Remand, and should note that review in the report. The examiner should address the lay statements of record regarding the claimed disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. The examiner should provide the following opinions, based on the record: (a) Did a respiratory disability clearly and unmistakably (medically undebatable) preexist entrance to active service? The examiner should state what evidence supports that opinion. (b) If a respiratory disability is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that a preexisting respiratory disability was not aggravated (worsened beyond the natural progress of the disease) during service. (c) For any respiratory disability that is found to not clearly and unmistakably have preexisted entrance to active service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the respiratory disability is etiologically related to active service or any event, disease, or injury during service, including whether a respiratory disability (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. The examiner must discuss any significance of the Veteran’s reported upper respiratory infections in service, as it pertains to the current respiratory diagnosis. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.