Citation Nr: 0200408	
Decision Date: 01/11/02    Archive Date: 01/16/02

DOCKET NO.  00-15 832	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to service connection for pleural effusion, 
fibrous pleuritis, and pleural plaques, claimed as secondary 
to exposure to asbestos in service.  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The veteran had active naval service from May 1968 to 
February 1972.

This matter comes to the Board of Veterans' Appeals (Board) 
from a November 1999 rating decision of the Department of 
Veterans Affairs (VA) Seattle Regional Office (RO), which 
denied service connection for pleural effusion, fibrous 
pleuritis, and pleural plaques, claimed as secondary to 
exposure to asbestos in service.  The veteran duly appealed 
the RO's determination and in October 2001, he testified at a 
Board hearing at the RO.


REMAND

As set forth above, the veteran is seeking service connection 
for his current pleural effusion, fibrous pleuritis, and 
pleural plaques, which he claims is due to exposure to 
asbestos in service.  In support of his claim, he has offered 
numerous lay statements describing his exposure to asbestos 
in service in the course of his duties aboard the U.S.S. 
Hoel.

There is no specific statutory or regulatory criteria 
governing claims for residuals of asbestos exposure.  McGinty 
v. Brown, 4 Vet. App. 428, 432-33 (1993).  Likewise, 
applicable criteria provide no presumption of service 
connection for asbestos exposure claims.  See Dyment v. West, 
13 Vet. App. 141, 145 (1999) (holding that M21-1 does not 
create a presumption of exposure to asbestos solely from 
shipboard service).  

However, VA has provided guidelines for the adjudication of 
asbestos exposure claims in the Adjudication Procedure Manual 
M21-1 (M21-1), Part VI, Par. 7.21.  The VA General Counsel 
has held that these M21-1 guidelines establish claim 
development procedures which adjudicators are required to 
follow in claims involving asbestos-related diseases.  See VA 
O.G.C. Prec. Op. No. 4-2000 (April 13, 2000).  

Specifically, these guidelines provide that VA must determine 
whether military records demonstrate evidence of exposure to 
asbestos in service and whether there is pre- or post-service 
evidence of asbestos exposure.  Then, VA must determine the 
relationship between the claimed diseases and such asbestos 
exposure, keeping in mind latency and exposure information 
provided in M21-1, Part VI, Par. 7.21(b).  This information 
provides that inhalation of asbestos fibers can produce 
pleural effusion, fibrosis and pleural plaques.  The latency 
period varies from 10 to 45 years between first exposure and 
development of the disease.  The exposure to asbestos may be 
brief (as little as a month or two) or indirect (bystander 
disease).

In this case, the record reveals that the RO has obtained the 
veteran's service medical and personnel records, which show 
that he served aboard the U.S.S. Hoel, but are negative for 
notations of asbestos exposure.  In addition, the RO 
contacted the National Personnel Records Center (NPRC) for 
additional information regarding the veteran's claimed in-
service asbestos exposure.  In January 2000, the NPRC 
responded that they had no way of determining to what extent 
the veteran had been exposed to asbestos during his active 
naval service.  They indicated that it was highly probable 
that asbestos products were used in the ship on which the 
veteran was stationed.  However, given his military 
occupational specialty, the NPRC indicated that the 
probability of his exposure to asbestos was "minimal."  In 
any event, the NPRC indicated that "a positive statement 
that the veteran was or was not exposed cannot be made."  

The record also contains evidence of significant post-service 
occupational exposure to asbestos, from 1972 to 1996, when 
the veteran worked as a marine pipefitter and a Quality 
Assurance Specialist in shipbuilding and repair.  It is noted 
that in connection with a post-service claim for workers' 
compensation benefits, it was determined that the veteran had 
pleural effusion, fibrous pleuritis, and pleural plaques, as 
a result of his post-service exposure to asbestos.  The 
question of whether his pulmonary condition was related to 
his in-service exposure to asbestos was not addressed.

After reviewing the evidence of record, by November 1999 
rating decision, the RO denied the veteran's claim of service 
connection for pleural effusion, fibrous pleuritis, and 
pleural plaques, on the basis that such claim was not well 
grounded.  Specifically, the RO noted that the record 
contained no competent evidence of a relationship between the 
veteran's current pulmonary disability and in-service 
asbestos exposure, as distinguished from post-service 
exposure.

Since the RO issued that rating decision, however, there has 
been a significant change in the law with the enactment of 
the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 
U.S.C. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001).  
Among other things, this law eliminates the concept of a 
well-grounded claim, and redefines the obligations of VA with 
respect to the duty to assist.  

On the basis of the current record, the Board finds that the 
change in the law brought about by the VCAA requires a remand 
of this claim for compliance with its new duty to assist 
provisions.  Specifically, the VCAA provides that in the case 
of a claim for disability compensation, the assistance 
provided by the Secretary shall include providing a medical 
examination or obtaining a medical opinion when such an 
examination or opinion is necessary to make a decision on the 
claim.  38 U.S.C.A. § 5103A(d)(1) (West Supp. 2001).  An 
examination will be deemed necessary if the evidence of 
record contains competent evidence that the claimant has a 
current disability, or persistent or recurrent symptoms of 
disability, and indicates that such disability or symptoms 
may be associated with the claimant's active service.  
38 U.S.C.A. § 5103A(d)(2) (West Supp. 2001).

In this case, the record contains evidence of in-service 
asbestos exposure.  See McGinty v. Brown, 4 Vet. App. 428 
(1993) (holding that a veteran is competent to testify as to 
the facts of his asbestos exposure); see also Nolen v. West, 
12 Vet. App. 347 (1999).  In addition, the record shows that 
the veteran has a current pulmonary disability which is 
associated with asbestos exposure.  See M21-1, Part VI, Par. 
7.21.  However, the issue of whether the veteran's current 
pleural effusion, fibrous pleuritis, and pleural plaques is 
causally related to his in-service exposure to asbestos has 
not yet been addressed by any medical professional.  Because 
it is not the function of the Board to make medical 
determinations, the duty to assist requires that this claim 
be remanded to obtain a medical evaluation and opinion.  See 
Colvin v. Derwinski, 1 Vet. App. 761 (1991) (holding that VA 
cannot substitute its own judgment or opinion for that of a 
medical expert).  

Accordingly, to ensure that the VA has met its duty to assist 
the veteran in developing the facts pertinent to the claim 
and to ensure full compliance with due process requirements, 
the case is REMANDED to the RO for the following:

1.  The veteran should be afforded a VA 
medical examination by an appropriate 
specialist, to determine whether he 
currently has an asbestos-related lung 
disease as a result of his in-service 
asbestos exposure.  The claims folder 
must be available to and reviewed by the 
examiner in conjunction with the 
examination.  All indicated tests or 
studies should be completed and the 
results reviewed by the examiner prior to 
the final opinion.  Specifically, the 
examiner should be asked to provide an 
opinion as to whether it is least as 
likely as not the veteran currently has 
an asbestos-related lung disease due to 
exposure during active duty, as opposed 
to his post-service asbestos exposure.  
In the opinion, the examiner should 
consider all relevant factors contained 
in M21-1, Part VI, Para. 7.21.  A 
complete rationale for all conclusions 
should be provided.  If an opinion can 
not be expressed without resort to 
speculation, the examiner should so 
indicate.

2.  Following completion of the 
foregoing, the RO should review the 
claims file to ensure that all of the 
foregoing development has been completed 
in full.  If any development requested 
above has not been completed, remedial 
action should be undertaken.  Stegall v. 
West, 11 Vet. App. 268 (1998).  The RO 
should also ensure that all notification 
and development actions required by the 
VCAA have been completed in full.  

Then, the RO should review the claim.  If the benefit sought 
on appeal is not granted, the veteran and his representative 
should be provided a supplemental statement of the case and 
afforded an opportunity to respond.  The case should then be 
returned to the Board for further appellate consideration.  

The veteran has the right to submit additional evidence and 
argument on the matter or 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 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.



		
	M. Sabulsky
	Member, Board of Veterans' Appeals