Citation Nr: 21023959 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-55 139 DATE: April 21, 2021 ORDER Service connection for a lung condition, to include as secondary to asbestos exposure, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s lung condition began during active service, or is otherwise related to an in-service injury or disease, in include exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a lung condition, to include as secondary to asbestos exposure, 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 from March 1971 to October 1985. This case was remanded in November 2018 for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases will also be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 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 credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a lung disorder to include as secondary to asbestos exposure. The Veteran seeks service connection for a lung condition, which he alleges is related to exposure to asbestos while in the Air Force. In correspondence received in March 2013, the Veteran claimed that during his time in the Air Force, he flew in aircrafts to Saudi Arabia, where he was exposed to asbestos. Furthermore, he contends since that time, he has suffered from upper lung problems, is fatigued almost all the time, and has been diagnosed with a mass on his left lung. See Correspondence received March 2013. The Veteran alternatively contends that he may have been exposed to asbestos while conducting training exercises. See October 2016 VA Form 9, substantive appeal. Postservice treatment records show that the Veteran has a diagnosis for an asbestos-related disease without evidence to suggest mesothelioma. See VA Treatment Record received March 2021. Specifically, his treatment records show a diagnosis for pulmonary nodule/asbestosis. See VA Treatment Record received March 2021. Such is sufficient to meet the requirement of a present disability. The question is whether the Veteran’s current disability began in service or is at least as likely as not related to an in-service injury, event or disease. In this regard, the Veteran’s service treatment records (STRs) show he was treated in June 1977 for pleurisy with no abnormalities found on chest X-ray. He was treated for upper respiratory infections on multiple occasions which resolved. He was also treated for complaints of chest pain with a productive cough in March 1982 with no significant findings found on chest X-ray. Such records are otherwise silent for any other signs, symptoms or diagnosis of a lung condition, to include pulmonary nodule/asbestosis. Further, in a March 1985 Dental Patient Medical History record, a history of lung disease was specifically denied and the Veteran’s March 1985 Report of Medical Examination for purposes of separation also does not indicate the presence of any respiratory or pulmonary conditions or concerns. See STR Medical. The Veteran’s DD-214 shows that he worked as a medical service specialist. His service personnel records show he also worked as an aeromedical evacuation specialist. In these positions, his duties and responsibilities included providing support with patient care, the transport of patients, and the operations of inflight and ground equipment. Furthermore, with regard to the Veteran’s contention that he had in-service exposure to asbestos, the Board notes that there is no evidence of record showing that he was exposed to asbestos at any point during his active duty military service. To the contrary, the record shows that the Veteran has only made vague references to such exposure. In April 2014, the Regional Office (RO) sent a letter to the Veteran asking him to provide additional information with respect to his alleged asbestos exposure. Additionally, in the November 2018 Board remand, it was requested that the Veteran provide more specific details concerning the claimed asbestos exposure. This was followed by a letter from the RO to the Veteran in December 2020 requesting the same information. The Veteran did not respond nor provide any information to any of the requests regarding his alleged asbestos exposure. The Board also notes that a May 2013 private treatment record indicates the Veteran told clinicians that he did not recall being exposed to asbestos. See Private Treatment Record received June 2015. This is notable because the Veteran had requested disability compensation for a lung condition based on asbestos exposure only two months earlier. See Correspondence received March 2013. In Rucker v. Brown, 10 Vet. App. 67, 73 (1997), it was held that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate. Specifically, it was observed that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Thus, it would appear logical that had the Veteran been exposed to asbestos in service, as he had claimed only two months earlier before VA, he would have reported that history of exposure to his treating health care provider. Based on the foregoing, the Veteran’s claimed exposure to asbestos has not been established. Postservice treatment records show that the Veteran’s lung condition was not diagnosed until many years after his separation from service, and indeed, the Veteran does not contend that he had a lung condition, to include pulmonary nodule/asbestosis, while in service or that the condition had its onset within the presumptive period. Rather, it is the Veteran’s contention that his lung condition is related to in-service exposure to asbestos. The Board concludes that, while the Veteran has a current diagnosis of a lung condition, the preponderance of the evidence weighs against a finding that the condition began in service or is otherwise related to an in-service injury, event, or disease to include as to asbestos exposure therein. It is also not shown that the Veteran’s lung condition was shown as chronic in service, or that it manifested to a compensable degree within a presumptive period, or that it was noted in service with attributable continuity of symptomatology. The Board acknowledges the Veteran’s belief that he was exposed to asbestos while serving on active duty; however, the record does not support this contention. In consideration of this, the Board stresses that the duty to assist is a two-way street. If the Veteran wishes help, he must actively assist VA by providing the information requested by VA to support his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). While the Veteran was not provided a VA examination to determine the etiology of his current lung condition, aside from the Veteran’s vague contentions regarding in-service asbestos exposure, which has not been established by the record, there is no indication of an in-service incurrence or a nexus to service to warrant a VA examination. There is no competent lay or medical evidence of persistent symptoms of a disability since service. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Thus, in the absence of competent or credible evidence of an in-service incurrence for a lung condition and evidence linking the current lung condition to active duty service, entitlement to service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service connection for a lung condition must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.