Citation Nr: 0310593 Decision Date: 06/02/03 Archive Date: 06/10/03 DOCKET NO. 99-08 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. McDonald, Senior Counsel INTRODUCTION The veteran served on active military duty from October 1963 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island (RO). REMAND Initially, the Board notes that during the pendency of the veteran's appeal, the Veterans Claims Assistance Act of 2000 was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002). Following the RO's determinations of the veteran's claim, VA issued regulations implementing the Veterans Claims Assistance Act. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2002). Because of the change in the law brought about by the Veterans Claims Assistance Act of 2000, a remand in this case is required for compliance with the duty to assist provisions contained in the new law. Under the new law, a veteran is entitled to a complete VA medical examination, which includes an opinion as to whether there is a nexus between the claimed disorders and service based on all possible evidence. 38 U.S.C.A. § 5103A. The veteran has not been afforded a VA examination in conjunction with his claim. During a Travel Board hearing before the undersigned Veterans Law Judge conducted in August 2001, the veteran testified that he had been exposed to asbestos during his active military service. Accordingly, the claim must be analyzed under the laws and regulations that apply to service connection claims involving asbestos-related disease. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In 1988, a VA Circular set forth guidelines for review. 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, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and concluded that medical nexus evidence is needed to establish a well-grounded claim based on alleged in-service asbestos exposure. See VAOPGCPREC 4-00; 65 Fed. Reg. 33422 (2000). The need for evidence of a nexus continues to apply despite the elimination of the well-grounded claim requirement. See 38 U.S.C.A. § 5103A; see also Cuevas v. Principi, 3 Vet. App. 542 (1992). Other criteria apply to claims based on tobacco use during service. Direct service connection may be granted for disease or injury incurred or aggravated as a result of tobacco use during service. Where the evidence shows a likelihood that the illness had its origin in tobacco use after service and the veteran developed a nicotine dependence during service which led to continued tobacco after service, service connection may be established on a secondary basis under 38 C.F.R. § 3.310 (2002). VAOPGCPREC 2-93; 58 Fed. Reg. 42756 (1993). The determination of whether a veteran is dependent on nicotine is a medical issue. VAOPGCPREC 19-97; 62 Fed. Reg. 37954 (1997). Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, 4th Edition (DSM-IV), provides that the criteria for diagnosing substance dependence are generally to be applied in diagnosing nicotine dependence. In a case where, as a result of nicotine dependence acquired in service, a veteran continued to use tobacco products following service, the decision would have to be made whether the post-service use of tobacco products was the proximate cause of the disability or death upon which the claim is predicated. VAOPGCPREC 19- 97; 62 Fed. Reg. 37954 (1997). Therefore, the questions which must be answered in resolving a claim for benefits for tobacco-related disability or death secondary to nicotine dependence are: (1) whether the veteran acquired a dependence on nicotine during service; and (2) whether nicotine dependence which arose during service may be considered the proximate cause of disability or death occurring after service. The veteran's claim for entitlement to service connection for a respiratory disorder based on tobacco use was received by VA in February 1998. The Board notes that a new revision to the law regarding claims related to tobacco prohibits service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during the veteran's service, relates only to claims filed after June 9, 1998. See 38 U.S.C.A. § 1103 (2002). It does not affect those claims that were filed on or before that date, as in this case. The veteran testified before the Board that he was in receipt of Social Security Administration (SSA) disability benefits. Review of the claims file indicates that all the medical record evidence used in the SSA award determination has not been associated with the veteran's VA record. Since such records are pertinent to the veteran's claims on appeal, further development is required. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). 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. The RO should review the provisions of DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), as well as VA Adjudication Procedure Manual M21-1, Part III, para 5.13 and M21-1, Part VI, para. 7.21 in order to properly develop the veteran's claims for service connection for a respiratory disability claimed as secondary to asbestos exposure. In particular, the RO must request the service department and National Personnel Records Center to provide copies of the veteran's complete service administrative and personnel records, to include all shipboard assignments throughout his period of active service and any documented evidence of his asbestos exposure during service, as well as information regarding the veteran's inservice asbestos exposure from VA's Bureau of Medicine and Surgery, Washington, DC. 2. The RO should contact the veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include competent evidence that provides a relationship between any current respiratory disorder and his period of active military service. Based on his response, the RO should attempt to procure copies of all records which have not previously been obtained from identified treatment sources, to include treatment at the VA Medical Center in Brockton from November 2001 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 3. The RO should contact the SSA and request a copy of the decision granting disability benefits and of all medical records reviewed in reaching the decision granting disability benefits to the veteran. All attempts to secure these records must be documented in the claims file, and any records received that are not already of record, should be associated therein. If, after making reasonable efforts to obtain the SSA records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 4. Thereafter, the RO should schedule the veteran for a VA pulmonary examination to determine the nature and etiology of any respiratory disability found. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. All pertinent symptomatology and findings should be reported in detail. It is essential that the claims file be provided to the examiner for review in conjunction with the examination. Following examination of the veteran, and a review of the service and postservice medical records, the examiner should state whether it is as likely as not that any respiratory disorder found is related to the veteran's active duty service. Additionally, the examiner should provide an opinion as to the following: 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 as least as likely as not that asbestos exposure during the veteran's military service (assuming for examination purposes the accuracy of the veteran's history) would have been sufficient by itself to cause any current asbestos- related disease, irrespective of civilian exposure to asbestos before or after military service? c. Is it as least as likely as not that the veteran has a respiratory disorder as the result of tobacco use? If so, such a disorder should be specifically identified and described. d. Is the veteran nicotine dependent at the present time? If so, is it possible to determine by medical means (as distinguished from the veteran's self-reported history) when such dependence began -- specifically, did such dependence begin during military service? A complete rationale for all opinions should be provided. The report prepared should be typed. 5. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2002). In the event that the veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this remand. If the development is deficient in any manner, the RO must implement corrective procedures at once. 7. The RO should review the claims file to ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, is completed. In particular, the RO should ensure that the new notification requirements and development procedures f the Act are fully complied with and satisfied. 8. The RO should review the issue of entitlement to service connection for a respiratory disorder. The adjudication should be in accordance with all applicable law and regulations, Court decisions and other guideline pertaining to asbestos and tobacco-related diseases. 9. If any determination is adverse to the veteran, a supplemental statement of the case should be prepared and the veteran and his representative should be given a reasonable period of time for reply. Thereafter, the claim should be returned to the Board for further review on appeal. 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 United States Court of Appeals for Veterans Claims (Court) 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 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the regional offices 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. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).