Citation Nr: 0106444 Decision Date: 03/05/01 Archive Date: 03/08/01 DOCKET NO. 99-25 508 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for pulmonary asbestosis as a result of reported asbestos exposure in service. 2. Entitlement to service connection for carcinoma of the colon, including as a result of reported asbestos exposure in service. ATTORNEY FOR THE BOARD R.E. Smith, Counsel INTRODUCTION The veteran had active military service from January 1951 to October 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from February 1999 and August 1999 rating decisions of the RO. REMAND Initially, the Board notes that there is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations for those types of cases. However, in 1988, VA issued a circular on asbestos-related diseases that 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 the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). In addition, a recent opinion by VA's General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence is needed to establish a claim based on in-service asbestos exposure. See VAOPGCPREC 4-00. Based on the foregoing, VA must analyze the veteran's claims of entitlement to service connection for based on asbestos exposure in service under the established 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, the Board must determine 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 military records demonstrate evidence of asbestos exposure during service, develop 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). 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 veteran's DD-214 shows that his most significant duty assignment during his approximate 3 years and 10 months of service was at the U.S. Navy Base in Guantanamo Bay, Cuba. The veteran reported in a statement received in February 1999 that he was assigned to floating dry docks (AFDL-1 and/or ARD) at Guantanamo Bay and in fact lived on one of these dry docks. In a further statement in March 1999, he claimed that he was exposed to asbestos during his entire period of service including in the barracks during boot camp and during 18 months when he was stationed aboard an LST, in addition to when he was in Guantanamo Bay. The veteran's service medical records are negative for clinical documentation of pulmonary asbestosis and colon cancer. Private clinical records document surgery for carcinoma of the colon in 1998. As regards respiratory pathology, pulmonary function studies (contained in private clinical records) in 1996 indicate mild pneumoconiosis and chronic obstructive pulmonary disease (COPD). In a December 1996 report, W.H. Goldiner, M.D., provided a clinical impression of "probable asbestosis." However, interstitial fibrosis (asbestosis) was noted on the chest x- ray. Recorded clinical data in Dr. Goldiner's December 1996 report indicates that the veteran was initially employed in the summer of 1948 at Bethlehem Steel Corporation as a laborer. From 1949, for approximately four months, he was employed at Bethlehem Steel Shipyard. It was noted that during the time of employment he installed insulation. He cut and sawed the asbestos insulation, which he applied throughout an unidentified ship(s) and thereby exposed himself to extremely high concentrations of asbestos containing dust. He said that in 1950 he was employed at General Motors as an assembler. His service from 1951 to 1954 in the U.S. Navy was reported and it was noted that in 1954 he returned to General Motors and retired from there 30 years later. It was added that as an assembler and as an inspector with General Motors, the veteran worked extensively in the area of overhead insulated steam pipes and also was in the area of the pipe coverers who would remove and replace the asbestos insulation on the pipes. Based on the facts of this case as set forth above, the Board finds that it is appropriate to inquire into the nature and extent of the veteran's asbestos exposure before, during and subsequent to his military service. Central to the disposition of this case is a determination as to whether the veteran has an asbestos-related disease(s) and at what point he became sufficiently exposed to asbestos so as to eventually develop the asbestos-related disease(s). As the Board cannot exercise its own independent judgment on medical matters, further examination is required, to include an opinion based on review of the entire record. Colvin v. Derwinski, 1 Vet. App. 171 (1991). To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, consistent with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), the case is REMANDED to the RO for the following: 1. The RO should obtain from the veteran the names and addresses of all medical care providers who treated him for complaints regarding his claimed respiratory condition and for colon cancer since service, then obtain complete clinical records from all identified sources. 2. The RO should obtain, to the extent possible, pre-and post-service occupational information to ascertain the nature and extent of the veteran's exposure to asbestos outside of his period of military service. All records obtained should be placed in the claims folder. 3. The RO should also obtain a copy of the veteran's service personnel records to ascertain the nature and extent of the veteran's in-service asbestos exposure. All documents received should be associated with the claims folder. 4. The RO should then afford the veteran a special VA pulmonary examination to ascertain whether there is a relationship between his claimed in-service asbestos exposure and any current pulmonary pathology. All indicated testing should be conducted. The claims folder must be made available to the examiner and reviewed prior to the examination. Based on the examination and study of the case, the examiner should offer an opinion as to whether it is as likely as not that any current respiratory disorder is due to inhalation of asbestos materials the veteran encountered during service, or whether it is due to other causes such as pre or post-service exposure to asbestos in an occupational setting. Complete rationale for all opinions expressed must be provided. 5. The RO should then afford the veteran an examination with a VA oncologist to ascertain whether there is a relationship between his claimed in-service asbestos exposure and his colon cancer. All indicated testing should be conducted. The claims folder must be made available to the examiner and reviewed prior to the examination. Based on the examination and study of the case, the examiner should offer an opinion as to whether it is at least as likely as not that the veteran's colon cancer is due to inhalation of asbestos materials the veteran encountered during service, or whether it is due to other causes such as pre or post-service exposure to asbestos in an occupational setting. The VA examiner should also comment as to whether it is at least as likely as not that the veteran's colon cancer was present during service or was manifest within one year of his discharge from service. Complete rationale for all opinions expressed must be provided. 6. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions is completed in full. If any development is incomplete, appropriate corrective action is to be taken. 7. After completion of the foregoing, and any other development deemed warranted by the record, the RO should re-adjudicate the issues of entitlement to service connection for pulmonary asbestosis and colon cancer, to include on the basis asbestosis exposure in service, on the merits, in light of all applicable evidence of record and all pertinent legal authority, to include the provisions of 38 C.F.R. § 3.655, as appropriate, and the recently amended/added statutory provisions pertaining to VA's duties to assist/notify a claimant. The RO must provide adequate reasons and bases for its determination, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this REMAND. 8. If any benefit sought remain denied, the veteran should be provided with an SSOC and given the opportunity to respond within the applicable timeframe before the case is returned to the Board for further review. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication and to comply with recently enacted legislation. The veteran need take no action until otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. 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 or by the Court for further 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. BRUCE E. HYMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board is appealable to the Court. 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) (2000).