Citation Nr: 0010995 Decision Date: 04/26/00 Archive Date: 05/04/00 DOCKET NO. 98-05 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for thoracic spine disability. 2. Entitlement to service connection for chronic neck disability. 3. Entitlement to service connection for respiratory disability, including as due to asbestos exposure. 4. Entitlement to service connection for neurological disability. 5. Entitlement to assignment of a higher disability evaluation for service-connected disability described for rating purposes as chronic low back pain with limitation of motion, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran had active service from January 1952 to June 1972. These issues come before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran and his spouse testified at a personal hearing at the RO in January 1999. FINDINGS OF FACT 1. There is no medical evidence of a nexus between the veteran's currently diagnosed thoracic spine disability and his active military service. 2. There is no medical evidence of a nexus between the veteran's currently diagnosed chronic neck disability and his active military service. 3. The claims file includes a medical diagnosis of respiratory disability related to asbestos exposure, competent evidence of inservice incurrence, and medical evidence of a link to the veteran's active military service. 4. There is no medical evidence of a nexus between the veteran's currently diagnosed neurological disability and his active military service. 5. The veteran's service-connected disability described for rating purposes as chronic low back pain with limitation of motion is manifested by X-ray evidence of degenerative changes of the lumbar spine and clinically demonstrated moderate limitation of motion, but with additional functional loss due to pain which effectively results in severe limitation of motion. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for thoracic spine disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for chronic neck disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran's claim of entitlement to service connection for respiratory disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran's claim of entitlement to service connection for neurological disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The schedular criteria for entitlement to assignment of a 40 percent disability evaluation for the veteran's service- connected chronic low back pain with limitation of motion have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Issues. The first four issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Furthermore, certain chronic disabilities, such as arthritis and organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, it should be noted at the outset that statutory law as enacted by Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a service connection claim to be well grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Moreover, the truthfulness of evidence is presumed in determining whether a claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. A. Thoracic Spine Disability Review of the claims file reveals that the first well- grounded requirement of a medical diagnosis of current disability has been met. In this regard, various medical reports dated in the 1990's list diagnoses of arthritis of the thoracic spine and a compression fracture of the T-8 vertebral body. Further, the veteran's assertions regarding inservice incurrence are accepted as true for well-grounded purposes. The remaining question in the well-grounded analysis is whether or not the record included medical evidence of a nexus or link between the current thoracic spine disability and the veteran's military service. Service medical records do not appear to document any complaints or clinical findings related to the thoracic spine. Various periodic examinations conducted over the course of the veteran's 20 year career are silent for any references to thoracic spine problems. Except for some references to lumbar spine problems (for which service connection has already been established), the veteran's spine was clinically evaluated as normal on these periodic examinations, including the report of the veteran's retirement examination in October 1971. Significantly, the veteran underwent special orthopedic consultation in October 1971 in connection with lumbar spine complaints, but again there was no reference to any complaints or findings related to the thoracic spine. It further appears from the evidence now of record that there was no medical evidence of thoracic spine disability until the 1990's, many years after the veteran's discharge from service in 1972. In sum, there is no medical evidence of a continuity of pertinent symptomatology from service to suggest a link to service. Moreover, arthritis of the thoracic spine was not manifested within one year of discharge from service so as to show the necessary link to service by means of the presumption for arthritis. See 38 U.S.C.A. §§ 1101, 1112 and 38 C.F.R. §§ 3.307, 3.309. There is also no medical opinion otherwise suggesting a nexus to service. The veteran and his spouse testified at a January 1999 hearing regarding their belief that the veteran's thoracic spine disability is related to service. However, as a matter of law, these statements do not satisfy the medical diagnosis or medical nexus requirements and cannot, therefore, render his claim well grounded. See Espiritu at 494-95 (holding that laypersons are not competent to offer medical opinions). In other words, what is needed is medical evidence showing that the veteran's thoracic spine disability is related to service. By this decision, the Board is informing the veteran that medical evidence of causation is required to render his claim well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69 (1995). B. Chronic Neck Disability The veteran contends that he suffers from a chronic neck disability that was incurred in, or resulted from, active duty service. For purposes of this decision, the Board construes this issue as contemplating any disability of the cervical spine as well as any separate disability of the neck. The claims file does include a medical diagnosis of arthritis of the cervical spine, and as noted earlier the veteran's assertions regarding inservice incurrence are accepted as true for well-grounded purposes. For essentially the same reasons discussed in the above discussion of the thoracic spine disability claim, the Board finds that the neck disability claim is not well-grounded for lack of medical evidence of a link between the currently diagnosed disability and the veteran's service. Service medical records do not document any neck-related complaints or clinical findings. All periodic medical examination reports during service show that the neck and spine were clinically evaluated as normal. The first post-service reference to any neck complaints is a September 1980 treatment record from a military base documenting complaints of soreness in the left side of the neck, on and off for three months. Objectively, there was no masses or tenderness on the left side of the neck. The impression was muscle spasm in the neck. There are no subsequent medical records showing neck or cervical spine symptoms until the 1990's. There is therefore not medical evidence showing a continuity of symptoms from service to relate the current cervical spine arthritis to service. There is also no medical opinion suggesting such a link to service. As noted earlier, the statements of the veteran and his wife, as laypersons, do not satisfy the medical nexus requirement and cannot render the claim well grounded. See Espiritu at 494-95. What is needed with regard to this claim is medical evidence showing that the veteran's diagnosis of neck disability is related to service. By this decision, the Board is informing the veteran that medical evidence of causation is required to render this claim well grounded. 38 U.S.C.A. § 5107(a); Robinette at 69 (1995). C. Respiratory Disability While service medical records show that the veteran's lungs were clinically evaluated as normal on periodic examination, including retirement examination in 1972, post-service records show diagnoses of various respiratory disorders. A January 1993 report refers to bronchitis. A May 1996 VA consultation record refers to chronic obstructive pulmonary disease and chronic bronchitis. An August 1996 VA record also documents chronic obstructive pulmonary disease. A September 1997 VA radiology report is to the effect that there was some scarring or discoid atelectasis noted in the right lung base. A January 1998 respiratory system examination report stated that the veteran complained of severe emphysema with asbestosis which the veteran related to exposure during service (although it was reported that the exposure was on a ship between 1969 and 1972). The examiner reviewed the results of various radiology and pulmonary function tests that had been previously done. The reported impressions included the following: severe emphysema, with a partially bronchospastic component; and a history of asbestosis with chronic scarring in bilateral bases on chest X-ray. The examiner further opined that the veteran "has severe pulmonary disease primarily resulting from destructive emphysema, however, the [veteran] also has mild evidence that he may very well have pulmonic changes in the bases that may be attributable to asbestosis [sic] exposure." Given the nature of respiratory disorders due to asbestos exposure and the opinion expressed in connection with the January 1998 VA examination, the Board finds that the minimal requirements of a well-grounded claim have been met. In this regard, the Board acknowledges the fact that there is a 10 to 45 year latency period for the development of pulmonary disease due to asbestos exposure. (See VA Adjudication Procedure Manual, M21-1, Part VI, par. 7.21 (hereinafter M21- 1). Accepting the veteran's assertions regarding exposure (he testified that the exposure was due to sleeping in barracks which were constructed with asbestos materials), the Board finds the claim to be well-grounded. D. Neurological Disability As a preliminary matter with regard to this issue, the Board believes that totality of the evidence (as explained below) shows that the issue involved deals with disability due to neurologic factors, and is not psychiatric in nature. Accordingly, the decision is limited to consideration of whether the veteran suffers from neurological disability which is related to his military service. The SMRs include a May 1958 examination report noting that the veteran had been extremely nervous since 1952 and suffered insomnia since 1954; the veteran received no treatment for these conditions and their causes were unknown. Subsequent SMRs make no further mention of these conditions. Neurological and psychiatric examinations conducted during the course of various inservice periodic examinations showed these systems to be clinically normal. A June 1995 VA neurological consultation report diagnosed the veteran with adult chorea, probable Huntington's disease. A January 1996 VA electroencephalogram (EEG) was reported to be abnormal on the basis of epileptiform activity, which apparently originates in the right temporal region. VA neurological treatment records for the period October 1995 to August 1996 show that the veteran was seen for symptoms of seizures, dysphagia, chorea, and Huntington's disease. An August 1996 VA hospital discharge summary noted the veteran's history of chorea, Huntington's disease, and seizures, and included a review of the veteran's prior medical records, which contained brain tests and scans. Objectively, there was lingual, buccal, facial, and right arm dyskinesia's apparent. Grip was 3/5 and upper extremity strength was 4/5, bilaterally, and his gait was somewhat unsteady. During the course of his hospital stay, the veteran's Huntington's chorea was fairly well controlled by medication, but oral, buccal, lingual, and right arm dyskinesia's were evident throughout. The veteran remained on his seizure medication, and there was no seizure activity evident throughout the hospital stay. However, an EEG confirmed abnormal brain activity (left temporal dysrhythmia with tendency to spread to the right). The examiner stated that his magnetic resonance imaging (MRI) showed no focal lesions or any new changes, but the MRI report itself noted evidence of mild to moderate cerebral atrophy. The discharge diagnoses included chorea, putative Huntington's, and a seizure disorder. A December 1998 VA treatment record stated that the veteran was seen for complaints of headaches, forgetfulness, incontinence, and an inability to stand alone. The diagnosis was progressive dementia. VA neurological treatment records dated in the period December 1996 to June 1997 show that the veteran continued to be seen for symptoms associated with chorea, Huntington's disease, seizures, and dyskinesias. An April 1997 private molecular diagnostics test report, prepared for Ruth Abramson, Ph.D. by Nicholas Potter, Ph.D., stated that based on the molecular findings, a clinical diagnosis of Huntington's disease would not be supported. A January 1998 VA mental disorders examination report noted the veteran's history of seizures, and that an earlier test for Huntington's chorea was negative. Objectively, there were movements of tardive dyskinesia and choreiform movements throughout the interview. Although mild memory loss was evident, the examiner opined that the veteran's problems were neurologic as opposed to psychiatric. The initial step for finding the veteran's claim well grounded has been satisfied, in that there is a current medical diagnosis of a neurological disability (presumed to be true), variously diagnosed as dementia, chorea, Huntington's disease, and Huntington's chorea, with symptoms of seizures dysphagia, and dyskinesias, and as evidenced by abnormal EEG studies. Although the SMRs suggest that the veteran suffered only from nervousness and insomnia during the 1950s, which would not appear to be related to the veteran's current neurological disability, for the purposes of well-grounding the veteran's claim, his statements that he incurred his current neurological during service are presumed to be true. With regard to the third step, however, none of the medical evidence demonstrating that the veteran currently suffers from a neurological disability suggests a nexus or link to service. Furthermore, there is no medical evidence that the veteran complained of, was treated for, or diagnosed with, a neurological disability until June 1995 more, than 20 years after he was released from service. Thus, there is no basis for finding the claim well grounded pursuant to the chronicity provisions of 38 C.F.R. § 3.303(b). It also follows that the one-year presumption for organic diseases of the nervous system cannot be used to establish the necessary link to service to well-ground the claim. . What is needed concerning this claim is medical evidence showing that the veteran's diagnosis of neurological disability can be linked to service. By this decision, the Board is informing the veteran that medical evidence of causation is required to tender a well-grounded claim. 38 U.S.C.A. § 5107(a); Robinette at 69 (1995). II. Increased Rating for Low Back Disability The veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, the claim for a higher evaluation is well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, the severity of the disability at issue is to be considered during the entire period from the initial assignment of disability ratings to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). With a well-grounded claim arises a statutory duty to assist the veteran with the development of evidence in connection with his claim. 38 U.S.C.A. § 5107(a). After noting that the claims file includes VA examinations, radiology reports, and treatment records, the Board finds that the record as it stands is adequate to allow for equitable review of the veteran's increased rating claim and that no further action is necessary to meet the duty to assist the veteran. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Pursuant to a March 1998 rating decision, the veteran was initially granted service connection for a low back disability and assigned a 20 percent disability rating in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5295. This 20 percent disability rating has remained in effect ever since. An April 1988 VA radiological examination report revealed that there were mild degenerative changes at the L3-4 segment, with mild narrowing of the interspace, as well as in the L1-2 interspace. A January 1998 VA spine examination report recited the veteran's complaints of persistent low back pain since service in Vietnam. The veteran stated that he has never had leg pain, or bowel/bladder dysfunction. Objectively, bilateral leg raises and Faber signs were negative. Sensation to light tough was intact and motor strength testing was 4+/5 in all myotomes. A kyphotic deformity observed while the veteran was standing, and there was evidence of pain on movement. Range of motion was as follows: extension to 10 degrees; forward flexion to 70 degrees; 15 degrees of lateral bending, bilaterally; and 10 degrees of rotation, bilaterally. There was no spasm or tenderness over bony prominences, but the veteran did walk with an ataxic gait pattern. The impression included degenerative arthritis of the lumbar spine without neurologic dysfunction. The veteran's back disability is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5295, which governs ratings for lumbosacral strains. That code provides that a 40 percent disability rating is warranted when there is listing of whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint spaces, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation is appropriate for a lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The Board concludes that an increased rating to 40 percent under Diagnostic Code 5295 is not warranted. While the medical evidence demonstrates limitation of motion, some pain on motion, and X-ray evidence of degenerative changes, there is no medical evidence of a listing of the whole spine to the opposite side, a positive Goldthwait's sign, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint spaces, or some of the above with abnormal mobility on forced motion, or marked limitation of forward bending in a standing position. As noted above, the relevant medical evidence does show limitation of motion of the lumbar spine. Severe limitation of motion of the lumbar spine is rated 40 percent, while moderate limitation of motion is rated 20 percent. See 38 C.F.R. § 4.71a, Code 5292. The Board observes that the veteran's limitation of motion measurements are not deemed to exceed moderate range of limitation. The Board finds these measurements demonstrate a limitation in the range of motion of the veteran's lumbar spine that more nearly approximates moderate limitation of motion rather than severe. However, as arthritis of the lumbar spine has been shown, the provisions of 38 C.F.R. § 4.59 must considered. Additionally, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Again looking to the January 1998 VA exam, it must be recognized that the examiner reported that there was evidence of pain on range of motion studies. Although the examiner did not articulate to what extent such pain further limited motion, the Board notes that extension, lateral bending and rotation are shown to be significantly limited on testing, and it would be reasonable to assume that additional functional loss due to pain would further limit motion. After considering the clinical findings, the veteran's complaints of pain, and the provisions of 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, the Board finds that the veteran's lumbar spine disability results in severe limitation of motion so as to warrant a 40 percent rating under Code 5292. This is the highest rating available under this Code as well as under Code 5295. The Board has also considered 38 C.F.R. § 4.71a, Diagnostic Code 5293, for intervertebral disc syndrome which does allow for a rating in excess of 40 percent. Although the Board finds that the evidence of record demonstrates that the veteran suffers from diagnosis of degenerative disc disease, it was specifically noted that the veteran exhibited no neurological deficits, nor was there any evidence of muscle spasm. Therefore, a disability rating in excess of 40 percent under this Code is not warranted. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service connected disorder at issue has resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash. Finally, with regard to the foregoing decision, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of equipoise of the positive evidence and the negative evidence to permit a more favorable resolution of the appeal as to this issue. ORDER The veteran's claims of entitlement to service connection for thoracic spine disability, for chronic neck disability, and for neurological disability are not well grounded. The appeal is denied to this extent. The veteran's claim of entitlement to service connection for respiratory disability is well grounded. Entitlement to assignment of a 40 percent rating is warranted for service- connected disability described for rating purposes as chronic low back pain with limitation of motion. The appeal is granted to this extent. REMAND As discussed above, the Board has found the veteran's service connection for respiratory disability claim to be well- grounded. The veteran's contends, in part, that he suffers from a respiratory disability due to asbestos exposure. There is no statute specifically dealing with asbestos and service-connection for asbestos-related diseases, nor has VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases, which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter M21-1). VA must analyze the appellant's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, it must be determined whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). VA's General Counsel has recently held that certain M21-1 procedures are applicable 1. The RO should obtain and associate with the claims file any additional VA medical records pertaining to the veteran's treatment for respiratory disorders which are not presently associated with the claims file. 2. The RO should then undertake all applicable actions as set forth in M21- 1 for cases based on asbestos exposure, including actions to investigate whether or not military records demonstrate evidence of asbestos exposure in service and whether or not there is pre-service and/or post- service evidence of occupational or other asbestos exposure. All applicable M21-1 procedures should be accomplished. 3. If it is determined that the veteran was exposed to asbestos during service, then the veteran should be afforded a special VA examination to determine the nature and etiology of all current respiratory disability(s). The examination should include all necessary tests or studies. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should clearly report all respiratory disorders capable of diagnosis. As to each such disorder, the examiner should offer an opinion as to whether it is at least as likely as not that such disorder is related to asbestos exposure during active duty service in light of all findings of pre-service, inservice and post-service asbestos exposure. A detailed rationale for all opinions expressed would be helpful and is hereby requested. 4. After completion of the above requested actions, the RO should again review the claim of entitlement to service connection for respiratory disability. If the determination of this claim remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purpose of this remand is to comply with applicable development procedures for a well-grounded asbestos claim. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ALAN S. PEEVY Member, Board of Veterans' Appeals - 18 -