Failure to Establish Error on Examination Leads to Dismissal in Veteran’s Claim

The plaintiff filed this appeal after denial to entitlement of disability compensation for chronic obstructive pulmonary disease “COPD” which she claimed was caused by exposure to asbestos. Ms. Mussman’s claimed that her decedent, Mr. Mussman, was exposed to asbestos was while serving onboard the U.S.S. McNair from 1950-1954. Specifically, it was alleged that Mr. McNair slept 18 inches below asbestos wrapped pipes. In 2012, a VA examination revealed that Mr. Mussman’s disease was more likely related to his smoking history than exposure to asbestos. The examiner’s opinion took into account Mr. Mussman’s service in the navy. The claim was then denied and Mr. Mussman appealed arguing that the VA did not adequately take into account his exposure to asbestos. Mr. Mussman then underwent a second examination after a remand of the finding. This time the examiner noted that the Veteran slept under asbestos wrapped pipes and that “he could see and smell the dust” every time the guns went off. The conclusion found that the COPD was more likely related to his smoking history. Mr. Mussman then passed away. An appeal was filed.

The Board set out the analysis for entitlement to VA disability and stated that the following is required to establish disability in a medical sense or sometimes by lay testimony 1) a current disability 2) incurrence or aggravation of a disease or injury in service 3) a nexus between the claimed in service injury or disease and the current disability. Here the appellant argued that the Board did not offer any bases for a finding of minimal exposure. The court found this argument “underdeveloped” and stated that the appellant provided no authority that the Board failed to submit medical evidence in this determination. Moreover, the Board “determined that there was substantial compliance with the Board’s” prior remand order. The court also noted that it was able to “infer” the Board’s discussion of the “relative probable value of that determination” during the remand. According to the court, the appellant failed to demonstrate error especially in light of the smoking of a pack of cigarettes per day for 50 years.

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