Citation Nr: 0123636 Decision Date: 09/28/01 Archive Date: 10/02/01 DOCKET NO. 98-00 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for lung disease, including COPD, asthma, and asbestosis, due to exposure to asbestos in service. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran had active service from May 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) from a December 1996 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for a lung disability. In June 2001 the veteran testified at a hearing at the RO before the undersigned Member of the Board. REMAND The statutes governing the adjudication of claims for VA benefits have recently been amended and new regulations have been adopted to implement the new legislation. The amended statutes and regulations direct that, upon receipt of a complete or substantially complete application, the VA shall notify the veteran of any information and any medical or lay evidence not previously provided to the VA that is necessary to substantiate his claim. The VA shall make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3, 4, 114 Stat. 2096, 2096-2099 (2000); (enacted at 38 U.S.C.A. §§ 5103, 5103A, 5107 (West Supp. 2001)); 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156, 3.159, 3.326(a)). The appellant's claim has not been considered under the amended statutes and regulations. Therefore, the application must be returned to the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran essentially claims that he was exposed to asbestos during his active military service, and that this caused his current lung disease. A review of the veteran's Separation Qualification Record shows that he was a supply clerk and that he worked for 25 months in the South Western Pacific Theater of Operations, at a dock, checking supplies and cargo as it was loaded or unloaded from ship and directing the loading of cargo into the hold of ships. He also testified that his duties included loading and unloading ships, and that he worked on ships that were old steamers with big pipes wrapped in asbestos covering. There is evidence showing that the veteran has multiple calcified pleural plaques, consistent with asbestos exposure. Thus, the issue is whether the veteran's active service involved exposure to asbestos. With regard to further development, the Board finds that the RO should ensure that all available service personnel records for the veteran have been obtained. Additionally, the RO should determine the exact duties for a "receiving and shipping checker" at the time that this was the veteran's military occupational specialty. In McGinty v. Brown, the United States Court of Appeals for Veterans Claims (Court) observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos- related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) [hereinafter "DVB Circular"], that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB circular has been subsumed as § 7.21 of VA Manual M21-1. The Court has held that: neither MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the records; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); VAOGCPREC 4-2000. The applicable section of Manual M21-1 notes that one of the major occupations involving exposure to asbestos includes work in shipyards. Moreover, high exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this was significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA Manual M21-1 Part 6, Chapter 7, Subchapter IV, § 7.21(b). The Manual also provides that the rating activity is responsible for determining whether or not military records demonstrate evidence of asbestos exposure in service and ensuring that development is accomplished to determine if there is pre- service and post-service evidence of occupational or other asbestos exposure. VA Manual M21-1 Part 3, Chapter 5, Subchapter II, § 5.13(b). After obtaining any additional evidence, the RO should then make a specific determination as to whether or not military records demonstrate evidence of asbestos exposure in service, and in making this determination the RO should consider the guidelines established in VA Manual M21-1 Part 6, Chapter 7, Subchapter IV, § 7.21. In that regard, the Board notes that in the October 2000 supplemental statement of the case, the RO did not make findings consistent with VA Manual M21-1, in that the RO denied the veteran's claim by finding that it had not been shown and the veteran had "not alleged that he was involved in insulation on ships in service or in dismantling ships during service". Accordingly, this case is REMANDED for the following: 1. The RO must 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, 114 Stat. 2096 (2000) is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 1991 & Supp. 2001) and 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156, 3.159, 3.326(a)) are fully met. 2. An appropriate official at the RO should obtain any additional personnel records that may be available for the veteran. The official should also contact the necessary resources to obtain information pertaining to the specific duties of a "receiving and shipping checker 875" and "section leader 271"during the veteran's period of service, specifically vis-a-vis his exposure to asbestos . 3. The RO should then make a specific determination as to whether or not the veteran's military records demonstrate evidence of asbestos exposure in service, and in making this determination the RO should consider the guidelines established in VA Manual M21-1 Part 6, Chapter 7, Subchapter IV, § 7.21. 4. Thereafter, the RO should readjudicate this claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC 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 issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). 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). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. 2001) (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. THOMAS J. DANNAHER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), 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) (2000).