Citation Nr: 21031170 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 19-13 301 DATE: May 20, 2021 ORDER Entitlement to service connection for asbestosis of the left lung lobe is denied. Entitlement to service connection for vertigo, including as secondary to service-connected tinnitus, is denied. FINDINGS OF FACT 1. The Veteran is not diagnosed with asbestosis of the left lung lobe or any other disease related to asbestos exposure during service. 2. The preponderance of the competent and credible evidence of record does not establish that vertigo was incurred in service or was caused or aggravated by the Veteran's service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for asbestosis of the left lung lobe have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for vertigo, including as secondary to service-connected tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1955 to April 1958. These matters were before the Board of Veterans' Appeals (Board) in March 2020 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. SERVICE CONNECTION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that the Veteran's service treatment records are considered fire-related. In cases where service records are unavailable, a heightened duty exists to assist in the development of the claim and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). 1. Entitlement to service connection for asbestosis of the left lung lobe The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993). The most common effects of exposure to asbestos include interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that there is no presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. VAOGCPPREC 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos 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 asbestos exposure and the claimed disease. However, asbestos exposure alone does not mandate service connection. Rather, the evidence of record must show that such exposure caused a chronic disability. The Veteran claims exposure to asbestos as an operator of bulldozers, cranes, and trucks, the brakes of which had asbestos in them. See February 2020 Hearing Transcript. His DD-214 shows he served as a tractor operator. As noted, the Veteran's service treatment records are unavailable. However, he does not claim to have had complaints, treatment, or diagnosis of asbestosis or any disease related to asbestos exposure during service. At the hearing it was noted that it was in the 1980's that the Veteran realized through some medical [procedure] that there was a nodule in his lungs "some years back". VA treatment records do not reflect a diagnosis of asbestosis or other disease related to asbestos exposure. VA medical treatment records do not show a diagnosis of asbestosis, mesothelioma or any disease related to asbestos exposure. The evidence shows chest x-rays in December 1999, after a bronchoscopy, reveal a large mass of the left mid-lung with no infiltrate. A May 2005 assessment reveals a left upper lobe pleural based mass. The medical care provider noted the Veteran had undergone a bronchoscopy in 1999 for the same mass. At that time transbronchial biopsy was negative and the plan was to proceed with a biopsy, but the Veteran refused the procedure. Presently he continues to be asymptomatic. Clinically the mass seems more like a benign tumor because of the slow growth. The Veteran refused to proceed with any kind of biopsy to ascertain a final diagnosis. On November 2017 VA-contract respiratory examination, the examiner opined that the Veteran currently does not have a diagnosis of asbestosis left lung lobe that is at least as likely as not incurred in or caused by or related to asbestos exposure in service. The examiner reasoned that although the Veteran reports a history of asbestos exposure, there is currently insufficient objective medical evidence supporting a diagnosis of asbestosis. CT [computed tomography] scan of the thorax in November 1999 noted an incidental pleural mass, but there was currently no histopathology available. The CT scan was also silent for an asbestosis diagnosis. Therefore, a diagnosis could not be endorsed. In January 2018 VA received a copy of a letter dated in December 2016 that the Veteran's attorney sent to him. The letter informed the Veteran that he had been approved for payment for one of his asbestos claims. The letter suggests that the Veteran was part of a class action lawsuit against an unnamed company. While the letter suggests the Veteran may have an asbestos-related disease, the letter itself does not provide a conclusive diagnosis. In July 2020, VA notified the Veteran of additional evidence needed from him to substantiate his service connection claim for asbestos. To date, he has not submitted any additional information in support of his claim for service connection for asbestosis. Thus, in the absence of a diagnosis of asbestosis or other disease related to asbestos exposure, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim is denied. 2. Entitlement to service connection for vertigo, including as secondary to service-connected tinnitus The Veteran contends he has vertigo related to his active duty service. His service records are fire-related and unavailable. On examination of the ears in April 2005, and May 2006 he was negative for vertigo. A January 2017 orthopedic surgery note shows he had a positive history for vertigo, but no diagnosis. At the February 2020 Board hearing the Veteran stated that the vertigo mostly came from jumping out of airplanes. He related that the first time he remembers feeling dizziness, off-balance or like he was spinning was after he left the "door of a C-119 about 12 or 13 times." He stated that after about 12 or 13 jumps, he could not stand up and close his eyes. He reported that after explaining that he had dizzy spells and that he could not stand up and close his eyes because he would "go down," a doctor told him those were symptoms of vertigo. The Veteran stated he has experienced issues with vertigo since that time to the present. On October 2020 VA-contract ear conditions examination, the Veteran reported that he loses balance and falls if he closes his eyes. He stated he saw a doctor in 1959 who diagnosed him with having vertigo. The VA-contract examiner indicated that the Veteran did not have or had ever been diagnosed with an ear or peripheral vestibular condition. The examiner concluded that there was no diagnosis of vertigo, and the claimed vertigo condition is less likely than not aggravated by the Veteran's service-connected tinnitus. The examiner reasoned that there are no findings, signs, or symptoms to support a diagnosis. The examiner's reason for the conclusion was there were no service treatment records due to unavailability due to being fire-related. The mention of vertigo in the January 2017 VA orthopedic surgery note is the only treatment record listing vertigo. There was no vertigo shown on examination, and the Veteran denied symptoms of vertigo (spinning objects) and no dizziness. The Veteran stated he loss balance if he closed his eyes. The examination revealed only a positive Romberg test but with other normal examination findings, which is clinically not explained. The Board finds this examination is highly probative of the matter being considered here because the examiner based the conclusions on a thorough review of the available lay and medical evidence and supported conclusions with a sufficient rationale. The Board finds that the preponderance of the evidence is against the finding of a current diagnosis of vertigo. While a January 2017 VA note lists vertigo, there is no further explanation provided. The recent VA examiner, however, reviewed the claims file, examined the Veteran, found no basis for a vertigo diagnosis, and provided a rationale for this finding. The Board has considered the Veteran's lay contentions. He testified that during service he experienced feeling dizzy, off-balance, or spinning after jumping out of airplanes multiple times. The evidence of record shows he did not have a positive finding of vertigo until January 2017, more than 50 years after separation from service. Prior to that, examinations of the ears were negative for vertigo. The gap of many years without complaints or treatment for vertigo is probative evidence against the claim for service connection. The Veteran also testified that, in essence, he was told by a doctor that his symptoms were vertigo. Here, the Veteran's account of what a doctor purportedly told him, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Furthermore, the October 2020 VA-contract examiner noted that the Veteran did not have or had ever been diagnosed with an ear or peripheral vestibular condition and concluded that there is no diagnosis of vertigo. Moreover, without a current condition, further consideration of secondary service connection is not warranted here. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the etiology of his vertigo, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the probative value of the contentions of the Veteran is outweighed by the medical opinion of record. Thus, the Board finds that the weight of the competent and credible evidence of record is against the Veteran's claim under the theories of direct and secondary service connection. Accordingly, the Board finds the weight of the evidence demonstrates that the claimed vertigo disorder is not the result of an in-service incurrence or proximately due to or aggravated by the service-connected tinnitus. The claim for service connection for vertigo is thus denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.