Citation Nr: 0011279 Decision Date: 04/28/00 Archive Date: 05/04/00 DOCKET NO. 97-19 024 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for asbestosis (or the residuals of inservice exposure to asbestos). REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Dennis F. Chiappetta, Counsel INTRODUCTION The veteran had active service from January 1971 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1996 RO rating decision, which denied service connection for asbestosis. The veteran's January 1997 letter was accepted as a Notice of Disagreement (NOD). A Statement of the Case (SOC) was issued in May 1997, and the veteran submitted his VA Form 9 in June 1997. The Board is aware that the RO, in a December 1996 decision, mistakenly reported the issue as whether new and material evidence was submitted to reopen a claim for service connection for asbestosis. This was done in spite of the fact that the January 1996 decision was not yet final and the one-year period the veteran had for submitting his NOD had not yet expired. The veteran cited the December 1996 decision in his January 1997 NOD, causing the May 1997 SOC (and, more recently, the April 1999 Supplemental Statement of the Case (SSOC)), to continue to report the mistaken issue. Nonetheless, the veteran's clear NOD of January 1997 was a timely expression of disagreement with the RO's January 1996 denial, and is accepted as such. The file contains transcripts of both the veteran's July 1997 hearing before a hearing officer at the RO, and his December 1999 hearing before a traveling member of the Board at the RO. At his December 1999 hearing the veteran submitted new evidence along with a statement waiving his right to review of that evidence by the agency of original jurisdiction. REMAND The veteran asserts that he has developed asbestosis as a result of inservice exposure to asbestos either while working with asbestos blankets and asbestos mittens as part of an M60A1 tank crew, or while working on the engine and brakes of tanks and trucks. The Board notes that the veteran has not presented a well- grounded claim for service connection for a disorder resulting from inservice asbestos exposure. See VAOPGCPREC 4-2000 (April 13, 2000) and Caluza v. Brown, 7 Vet. App. 498 (1995). In spite of this fact, for reasons explained below, his claim must be remanded for additional development. Service medical records have not been associated with the claims file. While post-service medical records note inconsistent diagnoses including mild chronic obstructive pulmonary disease (COPD) due to a long history of heavy smoking, the medical findings that tend to support the veteran's claim include: some focal atelectasis at the left lung base (August 1991 private chest X-ray report); cannot rule out minimal peribronchial infiltrate or increased pulmonary vascular prominence (January 1995 VA X-ray report); opacities consistent with asbestosis (April 1996 X-ray report from Ray A. Harron, M.D.); and asbestosis (March 1999 work copy of a pulmonary function test performed for the Houston VA medical center (VAMC)). The Board notes that the findings on the March 1999 pulmonary function test report conflict with those in a February 1999 VA examination report on file. As a final copy and interpretation of the March 1999 VA pulmonary function test is not of record, and no medical opinion has been rendered with regard to the etiology of the asbestosis reported on the work copy, additional development is warranted. On remand, attempts should also be made to obtain the veteran's service medical records. Service records show that the veteran served as an armor crewman with the 1st Armored Division. While the veteran has not submitted evidence specifically documenting inservice exposure to asbestos, he has testified that he used asbestos mittens when handling hot brass shell casings, that he was near asbestos heat shielding blankets, and that he came into contact with asbestos while working on the engines and brakes of trucks and M60A1 tanks. A statement from a soldier who reportedly served with the veteran supports this testimony. The Board also notes that the file contains a document that lists the components and basic issue items required to place the M60A1 tank in operation. The list of components and issue items included asbestos mittens. In addition, while an August 1997 letter from the Department of the Army indicated that the veteran could not have been exposed to asbestos while in the tanks because the only asbestos in the tank at that time would have been in the engine compartment, the same letter also noted that the veteran may have been exposed to asbestos in an old building or barracks that he had stayed in. During his December 1999 hearing, the veteran testified that since service he has worked as a welder and a construction worker. The RO should secure copies of the veteran's service records, or any other records that could contain evidence regarding possible exposure to asbestos, either during service or after separation. In addition, the Board notes that during his December 1999 hearing, the veteran stated that a private physician, Dr. Alan Heilman, had reported in 1992 that there was some relationship between his lung problems and his exposure to asbestos. While some of Dr. Heilman's records are on file, these do not appear to include any findings with regard to the veteran's lung problems or any connection with asbestos. On remand, the RO should attempt to obtain any relevant medical records identified by the veteran. As noted above, the file lacks service medical records, a final version of the March 1999 VA pulmonary function test, and specified medical records. These treatment records may be relevant to the appellant's claim and are necessary for a fair adjudication of his claim. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Robinette v. Brown, 8 Vet. App. 69 (1995). Because VA is on notice that additional pertinent medical records may exist and because a medical opinion is needed with regard to the March 1999 diagnosis of asbestosis, the issue of entitlement to service connection for asbestos exposure must be remanded for further development. Since the veteran has not documented his inservice exposure to asbestos, and the file does not contain the specific private medical records that the veteran stated would show a nexus between his lung problems and exposure to asbestos, the RO should make another attempt to contact the veteran and afford him the opportunity to submit any evidence relevant to his claim. In view of the foregoing, the Board concludes that additional action is warranted. This case is therefore REMANDED for the following: 1. The RO should obtain copies of the veteran's service medical records as well as any other service records (or post service records) that would tend to indicate possible exposure to asbestos. 2. The veteran should be contacted, informed of the evidence necessary to complete a well-grounded claim, and afforded the opportunity to submit any additional evidence that may support his claim for service connection for residuals of asbestos exposure. Specifically, he should be advised of his right to submit pertinent medical records regarding his claim, to include any records from Dr. Heilman, which would tend to indicate that the veteran's lung problems are related to inservice exposure to asbestos. Any evidence received from the veteran should be made part of the claims folder. 3. Thereafter, the RO should contact the veteran and request that he submit the names, addresses and approximate dates of treatment by all health care providers, VA and non-VA, who have treated him for lung problems at any time since his discharge from service. When the veteran responds, and provides any necessary authorizations, the named health care providers should be contacted and asked to provide copies of all clinical records documenting their treatment which are not already in the claims folder. Of specific relevance are pertinent treatment records from the VAMC at Houston, Texas, including a final version of the pulmonary function study tests accomplished in 1999, along with any interpretation. All records obtained which are not already on file should be associated with the claims folder. 4. Thereafter, the RO should review any additional evidence obtained. If the claim is determined to be well grounded, the RO should take such further development as may be needed. For example, the RO may wish to contact the VA physician who performed the February 1999 examination, and ask that physician to express a further opinion as to the correct diagnosis and etiology of any current pulmonary disorder, based upon a review of the service medical records and any additional evidence of record, including the March 1999 VA pulmonary functions test findings or other evidence noted in this remand. If warranted, the RO may also wish to schedule any additional examination believed to be necessary for proper adjudication of the veteran's claim. 5. Following completion of the above, and after consideration of any additional evidence, the RO should readjudicate the veteran's claim for service connection for asbestosis. 6. If any benefit requested by the veteran is denied, he and his representative should be furnished an SSOC which provides adequate notice of all actions taken by the RO subsequent to the issuance of the April 1999 SSOC. The appellant must then be afforded the opportunity to reply thereto. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the appellant until he receives further notice. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. The appellant has 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). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. D. C. Spickler Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).