Citation Nr: 0106243 Decision Date: 03/01/01 Archive Date: 03/08/01 DOCKET NO. 94-40 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at law ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had recognizable military service with the Merchant Marines from December 13, 1944, through January 22, 1945, and with the United States Coast Guard from December 1945 to December 1947. This matter is before the Board of Veterans' Appeals (Board) as the result of a May 19, 2000, order of the United States Court of Appeals for Veterans Claims (previously known as the United States Court of Veterans Appeals) (Court) which vacated a May 21, 1999, that held that the veteran's claim for service connection for asbestosis was not well grounded under the law. The appeal to the Board was from an October 12, 1993, rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA) which had denied the veteran's original claim for service connection for asbestosis, received in July 1993. The Board had previously remanded the appeal to the RO on May 5, 1997, for further evidentiary development and adjudication. In upholding the denial of service connection for asbestosis, the Board acknowledged that the veteran had presented evidence of a current diagnosis of asbestos-related disease but noted that the veteran's self-reported history of asbestosis exposure included preservice and post service exposure and that the only evidence of exposure in service consisted of his own statements. The Board found that the record did not include competent evidence that in the absence of evidence that asbestosis resulted from exposure during service, there was no competent evidence of a medical nexus between current disability and service and the claim was therefore not well grounded. On review of the Board's findings, the Court held that in determining whether the claim was well grounded, the Board had not addressed the findings of a private physician, R. J. Mezey, M.D., and remanded the matter for the Board to address in the first instance whether that medical opinion constituted the requisite medical evidence of a nexus to well-ground the claim. During the pendency of the present appeal before the Board there has been a significant change in the law. On November 9, 2000, President Clinton signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA), which, among other revisions, eliminates the concept of a well-grounded claim, redefines VA obligations with respect to the duty to assist, and supercedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), holding that the VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, ___ (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In view of the enactment of the VCAA, the question of whether the claim for service connection for asbestosis is well grounded is now moot and will not be addressed further. The Board will instead proceed directly to consider the substantive question of whether the evidence of record following compliance with the notice and duty to assist requirements of the new law establishes entitlement to service connection for asbestosis. REMAND Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, ___ (2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). Since the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the veteran for the Board to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). In addition, the need for certain specific development actions is now apparent in light of the circumstances of this case and the contentions raised by the veteran before and after the order of the Court. If additional evidence is received, the initial list of development actions discussed herein may prove to be less than all-inclusive. The RO should proceed in light of the mandates set forth in the new law in accordance with the guidelines set forth in VBA Fast Letters 00-87 (November 17, 2000) and 01-02 (January 9, 2001) and undertake any necessary followup actions that become apparent. The veteran contends that he has asbestosis as a result of exposure to asbestos during service in the United States Coast Guard during World War II, when he worked exclusively in the engine room of his ship repairing asbestosis-covered pipes and working as a steam evaporator operator, in which capacity he had to remove the evaporator manhole cover and replace it with asbestos covering. He claims that at times the asbestos would fly around the room like snow. The veteran also reports that at age 16, before entering service, he worked in cargo ships where he was confined to the engine rooms and was exposed to asbestos flaking off of steam pipes. From age 20 to age 53 he worked at industrial plants as a millwright or boiler maker and received abundant exposure to asbestos. The post service medical records are conflicting as to the current existence of asbestos-related disease. A VA examination of August 1993 noted a history of exposure to asbestos but stated that X-rays showed no evidence of acute pulmonary infiltrates and included a diagnosis of mild chronic obstructive pulmonary disease. In July 1994, Dr. Mezey enumerated four specific medical findings as evidence of pulmonary asbestosis and asbestos-related pleural disease. A VA examination of November 1997 performed pursuant to the Board's remand resulted in a medical conclusion that although the history was significant for asbestos exposure and that although pulmonary function tests were not inconsistent with asbestos-related disease, radiographic studies showed no evidence of asbestos-related changes. There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. However, in 1988 a VA Circular on asbestos-related diseases set forth guidelines for review of 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) (M21-1). Also, a recent opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and concluded, in part, that medical nexus evidence is needed to establish a well- grounded claim based on alleged in-service asbestos exposure. See VAOPGCPREC 4-00. The need for evidence of a nexus continues to apply despite the elimination of the well-grounded claim requirement. The United States Court of Veterans Appeals (now known as the United States Court of Appeals for Veterans Claims) (Court) has held that, as a general rule, to establish service connection for a disability, the evidence must show (1) the existence of a current disability; (2) the existence of a disease or injury in service and, (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet.App. 542 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). The Board must analyze the veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). A number of medical principles are included. 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) (January 31, 1997). An asbestos- related disease can develop from brief exposure to asbestos. Id. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(c). Service department medical records indicate that the veteran served aboard Coast Guard ships during the service period from 1945 to 1947, specifically, the U. S. C. G. C. Kukui (WAK-186) after receiving training in basic engineering. There is no evidence contradicting the veteran's assertions as to the nature of his duties, and his statements appear to be consistent with his service duty as shown in his personnel file. Based on this account, the evidence as to exposure to asbestos during service appears to be at least in relative equipoise. See McGinty, Id. (the veteran was competent to testify as to the facts of his asbestos exposure though his testimony as to the cause of the disease was not competent evidence of causation because the determination of the cause of a disease is a medical matter). The reports from Dr. Mezey referenced the veteran's history of exposure to asbestos, and although the report did not expressly indicate that the veteran's asbestos-related disease resulted from in-service exposure, the diagnosis based on a history of asbestos exposure during service leaves open, by inference, the possibility that the exposure that led to the disorder included exposure during service. Stated another way, the diagnosis of asbestos-related disease can be viewed as having been based, at least in part, on the reported history of asbestos exposure during service. However, what cannot be determined from the record is whether the later onset of asbestos-related disease (if the presence of such disease is ultimately confirmed) is related to the asbestos exposure during service rather than the exposure during civilian life. The RO based its denial in part on a finding that the service exposure, assuming the veteran's self-reported history to be true, was rather short by comparison to the civilian exposure. However, a finding to that effect entails a medical determination that is beyond the competence of this Board or the RO. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition to the requirements of the VCAA, in asbestos- related claims the Board must follow development procedures applicable specifically to such claims. The Court held in Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997), that the Board should have specifically referenced the DVB Circular and discussed compliance with its claim-development procedures. In accordance with the specified procedures, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop the evidence as to whether 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). Under the VA guidelines, the radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). The radiographic findings reported by Dr. Mezey include a report of pleural thickening with plaques along both lateral chest walls, thereby satisfying the M21-1 requirements. Despite these findings, the medical evidence with regard to whether the veteran in fact has asbestosis is contradictory, given the negative findings reported at the October 1997 VA examination. The VA radiographic studies that led to the finding of no asbestos-related lung changes was based in part on the results reported on CT scan. By contrast, Dr. Mezey's conclusions evidently were based on ordinary X-rays. On the other hand, Dr. Mezey is a board-certified specialist dealing in pulmonary disease. The specialty status of the VA examiner is not shown in the record despite the Board's instruction that the examination be conducted by a board- qualified specialist if available. The Board agrees with the veteran that another examination should be conducted and that every effort should be made to have it performed by a pulmonary specialist. If the examination is not performed by such a specialist and if the reason is the unavailability of such a specialist, that fact should be stated in the record. It is necessary that the specialist review the veteran's claims file, including the service medical records, and provide an opinion as to the likelihood that any current asbestos-related disease is related to the veteran's military service rather than to civilian exposure. See Colvin Id.; Santiago v. Brown, 5 Vet. App. 288, 292 (1993). If a determination is not possible, that should also be stated. Additional evidentiary development is also required to determine the likelihood of exposure to asbestos during the veteran's brief period of service in December 1944 and January 1945 on a civilian Merchant Marine vessel performing Government service recognizable for VA purposes. The RO was requested in the May 1997 remand to ask the National Personnel Records Center (NPRC) to conduct a special search to locate any additional service medical records pertaining to any treatment that the veteran may have received. The RO request to the NPRC made pursuant to the remand noted only the period of Coast Guard service from 1945 to 1947; however, an attachment consisting of a photocopy of a portion of the remand made it clear that Merchant Marine records from December 1944 and January 1945 were also necessary. There ensued a sequence of letters and followup requests among the RO, the NPRC, the veteran, and the United States Public Health Service to obtain records relating to medical care which the veteran claimed to have received at a Public Health Service hospital during his Merchant Marine service. The requests to the Public Health Service were not limited to the period from 1945 to 1947. No medical records pertaining to the veteran were received. The question of whether the RO efforts pursuant to the remand were adequate to satisfy the requirements of the VCAA must be reviewed by the RO. Where the record before the Board is inadequate, a remand is required. Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following actions: 1. Upon receipt of proper authorization from the veteran, the RO should contact Dr. Mezey and request the original X-ray films taken in 1994 or at any subsequent time upon which a diagnosis of asbestos-related disease was based, if available. The film should be incorporated into the claims file. The request and any necessary followup actions should conform to the requirements of the VCAA as set forth in VBA Fast Letters 00-87 (November 17, 2000) and 01-02 (January 9, 2001). 2. The veteran should be contacted and given an additional opportunity to identify all medical care providers, both Government and private, including physicians and institutions (clinics or hospitals) from which he has received examination or treatment for asbestos-related or other respiratory disease. Upon receipt of all necessary authorizations, the RO should obtain copies of all available documentation from the medical providers identified by the veteran. The request and any necessary followup actions should conform to the requirements of the VCAA as set forth in the VBA Fast Letters of VBA Fast Letters 00-87 (November 17, 2000) and 01- 02 (January 9, 2001). 3. Upon completion of the foregoing, the RO should schedule the veteran for a VA examination by a board-certified specialist in pulmonary disorders. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. It is mandatory that the claims folder be provided to the examiner for review in conjunction with the examination, together with a copy of this remand. The examiner must state in the examination report whether he or she is a pulmonary specialist and certify that the entire claims file was reviewed. On the basis of current examination findings, review of the file (including any additional radiographic films received from Dr. Mezey), and any additional information obtained from the veteran, the examiner should respond to the following questions posed by the Board. In responding, the specialist must reconcile the contradictory medical evidence of record as to the current existence of asbestosis. The specific questions are as follows: a. Does the evidence of record, including findings on current radiographic studies, demonstrate the presence of asbestos-related pulmonary disease? b. If asbestosis or asbestos- related lung disease is found, is it more likely than not, as likely as not, or less likely than not that the asbestos exposure during Merchant Marine service and Coast Guard service in World War II (assuming the accuracy of this history) would have been sufficient by itself to cause the current asbestos-related disease, irrespective of extensive civilian exposure to asbestos before and after military service? 4. The RO should review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. For further guidance on the processing of this case in light of the changes in the law, the RO should refer to VBA Fast Letters 00-87 (November 17, 2000) and 01- 02 (January 9, 2001), as well as any pertinent formal or informal guidance that is subsequently provided by the Department, including, among others things, final regulations and General Counsel precedent opinions. Any relevant court decisions that are subsequently issued also should be considered. 5. After completion of the foregoing, the RO should readjudicate the issue on appeal. If the claim remains denied, the veteran and his representative should be provided with a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the appeal. An appropriate period of time should be allowed for response. Thereafter, the claim should be returned to the Board for further review on appeal, if in order. No action is required of the veteran until he receives further notice. The purpose of this remand is to obtain additional information. The Board does not intimate any factual or legal conclusions as to the outcome ultimately warranted in this appeal. 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. 2000) (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. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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).