14-24 340
14-24 340
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served in the U.S. Coast Guard (Jan 1951–Jan 1954) as an Electrician's Mate; that MOS carries a moderate likelihood of asbestos exposure.
- Veteran has a long smoking history (~80 pack-years) and is diagnosed with chronic obstructive pulmonary disease (COPD); he is oxygen dependent.
- The record contains inconsistent references to asbestosis: some treatment notes and a March 2014 DBQ list asbestosis, but multiple pulmonologists, radiologists, and several VA examiners (2013, 2014, 2015, 2016) concluded he does not have asbestosis.
- VA examiners and an addendum opinion found COPD present but opined it is less likely than not related to in-service asbestos exposure; they attributed COPD primarily to tobacco use and cited medical literature that asbestos exposure does not cause COPD.
- The Board found substantial compliance with prior remand directives and adequate development (including VA opinions and a duty-to-assist letter); no credible medical nexus was shown between service/asbestos exposure and the Veteran’s COPD.
- The Board denied service connection for a pulmonary disorder (including asbestosis and COPD) because asbestosis was not shown and COPD was not shown to be service-connected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for asbestosis | Veteran asserts he was diagnosed with asbestosis and was exposed in service as an electrician's mate | VA/Board: treatment and VA exams show no current diagnosis; treating pulmonologist and radiologists say no asbestosis | Denied — asbestosis not established |
| Service connection for COPD | Veteran asserts COPD caused by in-service asbestos exposure | VA/Board: COPD present but medical opinions say asbestos does not cause COPD; smoking history is likely cause | Denied — no medical nexus to service |
| Adequacy of development/remand compliance | Claim advanced; private records requested; DBQs obtained | AOJ obtained VA exams and addendum; Board found substantial compliance with remand | Found adequate/substantial compliance; development sufficient |
| Application of benefit-of-the-doubt rule | Veteran seeks benefit where evidence is conflicting | Board: preponderance of evidence against nexus; no approximate balance exists | Benefit-of-the-doubt not applied; claim denied |
Key Cases Cited
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (lay evidence can establish a diagnosis in limited circumstances)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (Board cannot dismiss lay evidence solely because it lacks contemporaneous medical evidence)
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA satisfied notice and duty-to-assist obligations)