Citation Nr: 0111879 Decision Date: 04/24/01 Archive Date: 05/01/01 DOCKET NO. 00-19 775 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Schlosser, Counsel INTRODUCTION The veteran had active duty for training from July 27, 1964, to December 15, 1964, and active service from November 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision in which the RO denied service connection for asbestosis. 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 claim of entitlement to service connection for asbestosis 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 he was called to active duty in support of Operation Desert Shield/Storm from November 1990 to June 1991 and served in Okinawa during that time. The veteran reported in a statement received in October 1999 that he was exposed to asbestos during this period of service when he was exposed to air that was constantly contaminated with dust and particles from a Japanese construction company. He maintains that a chest x-ray in 1987 was normal, but a subsequent chest x-ray in 1997 after this incident in Okinawa which is the only exposure he had experienced since 1987, showed his asbestosis. The veteran's service medical records are negative for clinical documentation of asbestosis. There is an Asbestos Survey Questionnaire completed by the veteran which indicates that he was exposed to asbestos during his service. No other information regarding asbestos exposure is provided. A June 1987 chest x-ray from the Academy Imaging Center in Philadelphia, Pennsylvania, was reported to be normal without evidence of asbestos related pulmonary or pleural disease. The veteran was seen by James V. Scutero, M.D., in November 1997. At that time, he reported a history of exposure to asbestos while working with the railroad in 1966 as a machinist on a wheel trueing machine. He indicated that he did that work often from 1966 to 1991. Pulmonary function tests were normal. A chest x-ray showed increased markings at both bases consistent with pulmonary fibrosis with bilateral pleural plaquing along the lateral chest wall. Dr. Scutero concluded that based on the veteran's history of exposure and chest x-ray, he had asbestosis. The veteran did not relate any history of in-service asbestos exposure. On VA examination in October 1999, the veteran reported a history of six months of active service during Operation Desert Storm. He said that he had worked for 30 years as a machinist but had to quit because his asbestosis was making him take too much sick leave. The veteran indicated that his initial exposure to asbestos might have occurred when he was stationed in Okinawa during the Gulf War. He stated that there were some building which were being demolished that may have had some asbestos structures in them. He said that he was never given any precautionary measures to decrease the possibility of inhaling the asbestos compounds. His exercise tolerance had significantly decreased over the previous two years and he reported that he was not able to be as active as he had been in the past. The diagnostic impression was asbestos disease of the lungs producing symptomatology that has rendered the veteran disabled for maintaining full time gainful employment. The VA examiner indicated that the radiologist was going to submit an addendum to his report with specific information and pertinent information. The claims folder does not contain the referenced addendum from the VA radiologist. This must be obtained and associated with the claims folder. In his September 2000 notice of disagreement, the veteran disputed the extent of his pre-service asbestos exposure related in the November 1997 records from Dr. Scutero. At his VA examination, the veteran also indicated that he had applied for disability benefits from the Social Security Administration. The Court has held that in such instances, and with regard to the issue before the Board on appeal, the medical records underlying the award of Social Security Disability benefits must be obtained and reviewed by VA. Massors v. Derwinski, 2 Vet.App. 181 (1992); Murincsak v. Derwinski, 2 Vet.App. 363 (1992). 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). Moreover, 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), a remand is warranted. Based on the foregoing, the case is REMANDED to the RO for the following action: 1. 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. 2. The RO should ask the veteran whether he has received any treatment for his asbestosis since October 1999, the date of the VA examination. Based on his response, the RO should obtain a complete copy of all pertinent treatment records from the identified source(s), to include a copy of the addendum prepared by the radiologist that was referenced by the VA examiner in the October 1999 VA examination report. All records should be associated with the claims folder. 3. The RO should ascertain from the veteran whether he is currently in receipt of Social Security disability benefits and, if so, the RO should obtain a complete copy of the veteran's file with the Social Security Administration, including a copy the decision awarding disability benefits and a copy of all medical records associated with the veteran's application which supported the award of such disability benefits. 4. 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. 5. 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. 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 issue of entitlement to service connection for asbestosis, 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. 8. If any benefit sought on appeal remains denied, the veteran should be provided with an appropriate SSOC and given the opportunity to respond within the applicable time frame before the case is returned to the Board for further review. The purpose of this REMAND is to accomplish additional development 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 matter 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).