Citation Nr: 21022636 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-18 409A DATE: April 16, 2021 ORDER Entitlement to service connection for lung disability is denied. FINDINGS OF FACT 1. Entitlement to service connection for lung disability could not be established without the scheduled reexamination, and the reexamination was scheduled in connection with a claim considered an original compensation claim. 2. The evidence of record is insufficient to show that the Veteran’s lung disability had its onset during service or is related to service, to include asbestos exposure in service. CONCLUSIONS OF LAW 1. Entitlement to service connection for lung disability could not be established without a VA examination, and the failure to report, without good cause, for the examination scheduled in connection with the claim warrants consideration of the claim based on the evidence of record.  38 C.F.R. § 3.655. 2. The criteria for entitlement to service connection for lung disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to August 1983 and November 1987 to October 1998. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the Veteran’s claim of service connection for lung damage, to include asbestosis and possible malignancy. In January 2020, the Board remanded the matter for a VA examination, as discussed in further detail below. Failure to appear for VA examination without good cause Under 38 C.F.R. § 3.655(a) in effect prior to February 19, 2019, when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate.  38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement.  When a claimant fails to report for a scheduled medical examination, without good cause, scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member.  38 C.F.R. § 3.655. The claim on appeal was a claim for compensation submitted on a VA Form 21-4138 (Statement in Support of Claim) in July 2012. Although the term “original compensation claim” has some ambiguity, the Board will treat the claim as being an original compensation claim even though it was not the first claim for compensation and was not filed on a VA Form 21-526. Cf. Turk v. Peake, 21 Vet. App. 565, 570 (2008) (assuming that the terms original compensation claim and service connection claim are synonymous). In January 2020, the Board instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the nature and etiology of any lung disability. An examination was necessary because no VA examiner had opined as to whether lung nodules noted in post-service treatment records that may be a basis for a granulomatous disease were disabilities and whether they were related to service, to include in-service asbestos exposure. In a March 2020 Request for Physical Examination (VA 21-2507a), the Veteran declined to attend a VA respiratory examination in February 2020 as he claimed it was not necessary. Thus, the Board is satisfied that the Veteran received notice of the examination from the VA and refused to attend the examination without good cause. 38 C.F.R. § 3.655. As noted, in January 2020, the Board determined that a VA examination was needed to determine the nature and etiology of the Veteran’s lung disability. Without this information, there was insufficient evidence to decide the claim. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). Thus, as entitlement to the benefit sought could not be established without the scheduled examination, the provisions of 38 C.F.R. § 3.655(b) are for application, and the claim must be decided based on the evidence of record. Entitlement to service connection for lung disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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).  The Veteran contends that his lung disability is related to service, to include exposure to asbestos and other hazardous substances while aboard Navy ships. He also indicated in a July 2012 Statement in Support of Claim (VA 21-4138) that he had been experiencing shortness of breath and chest pains. For the following reasons, entitlement to service connection for lung disability is not warranted. In July 2011, a CT chest scan performed at the VA found a right lung nodule. There was evidence of old granulomatous disease, and a few small nodules were seen, including a 6 mm noncalcified nodule. Thus, the Veteran meets the current disability requirement. There is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. With respect to claims involving asbestos exposure, VA must determine whether the Veteran’s military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. The Veteran’s military personnel records confirm that he served as a storekeeper aboard multiple naval vessels throughout his military career. Given that the Veteran’s military occupational specialty was of the type with a minimal probability of exposure to asbestos, the Board finds that the Veteran was likely exposed to asbestos in service, even if only minimally. Thus, the Veteran meets the in-service injury or disease requirement. The Veteran’s service treatment records do not contain any notations relating to symptoms, treatment, or diagnosis relating to lung disability.  His August 1983, October 1987, August 1993, and March 1998 Reports of Medical Examination indicated that his lung and chest evaluations were normal. August 1993 and March 1998 Reports of Medical History did not indicate the Veteran experienced any lung disability issues. The Veteran did not indicate that he had treatment for, symptoms of, or a diagnosis of lung disability in the years between service and his post-service diagnosis, and he did not relay a diagnosis of lung disability during those years.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Post-service records reveal no treatment or diagnosis for lung disability until 2011, approximately 13 years after separation from active duty.  In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the normal Reports of Medical Examination and Reports of Medical History with regard to the lung and chest evaluations, and lack of notations relating to symptoms, treatment, or diagnosis relating to lung disability in the Veteran’s service treatment records, as well as lack of statements indicating continuous symptoms, that can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent that the Veteran’s lay statements suggest a relationship between his lung disability and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent.  Jandreau, 492 F.3d at 1376, n.4. (Continued on the next page)   For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for lung disability. The benefit of the doubt doctrine is therefore not for application, and the claim for service connection for lung disability must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.