08-33 313
08-33 313
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty Nov 1970–Feb 1971 (hardship discharge during basic training at Fort Knox). Service < 3 months and limited to basic training.
- First objective thoracic findings (CT showing small bilateral pleural plaques) appear in August 2006, ~35 years after service; prior service treatment records show normal chest exam at separation.
- Veteran asserts pulmonary disorder (emphysema/pleural plaques) due to in-service asbestos exposure from barracks/dust during training.
- VA obtained examinations (2013, 2016, and a detailed April 2017 exam). April 2017 examiner reviewed records, pulmonary testing, imaging, and opined that asbestos-related disease was less likely than not related to service given brief service, lack of documented exposure, and no corroborating record until 2006.
- Board found April 2017 opinion well-reasoned and highly probative, concluded preponderance of evidence against service connection for pulmonary disorder related to asbestos, and denied the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran’s pulmonary disorder (emphysema/pleural plaques) is service-connected as due to in‑service asbestos exposure | Veteran: pulmonary disease began in service and resulted from asbestos exposure in barracks/basic training dust | VA/Board: no evidence of specific in‑service asbestos exposure, service was brief and records lack pulmonary findings until 2006; medical opinion ties condition to non‑service onset | Denied — preponderance of evidence shows pulmonary condition not related to service/asbestos exposure |
| Whether VA satisfied duty to notify and assist in developing claim | Veteran: (implicit) VA must develop and obtain adequate exam/opinion | VA: provided notice (May 2007), obtained exams and substantially complied with remand instructions; April 2017 exam adequate | Held adequate — VA satisfied notice and assistance duties |
| Whether the April 2017 VA medical opinion is adequate and probative | Veteran: record and lay statements support nexus (no medical opinion in claimant’s favor) | VA: April 2017 opinion reviewed file, imaging, exposures and provided rationale; other prior exams found no pathology or were erroneous | April 2017 opinion found adequate and highly probative; relied upon by Board |
| Whether benefit-of-the-doubt rule applies | Veteran: entitled if evidence approximates balance | Board: preponderance of evidence against claim | No — benefit-of-the-doubt not applied because preponderance against claim |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA examinations/opinions must be adequate)
- Hickson v. West, 12 Vet. App. 247 (1999) (elements required for service connection)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir.) (service-connection analysis when disease diagnosed after discharge)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (preponderance/benefit-of-the-doubt standard explanation)
- Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir.) (limits of lay evidence for medical diagnoses)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical opinions must be supported by sufficient evidence and rationale)
- Sklar v. Brown, 5 Vet. App. 140 (1993) (opinion probative value reduced if rationale lacking)
- Baldwin v. West, 13 Vet. App. 1 (1999) (credibility and probative value govern determinations of service connection)