Citation Nr: 0323382 Decision Date: 09/10/03 Archive Date: 09/23/03 DOCKET NO. 02-12 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for asthma as a result of asbestos exposure. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from February 1974 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. REMAND The veteran claims that the RO erred in denying service connection for asthma as a result of asbestos exposure, COPD, and depression. Specifically, he contends that service connection for asthma and COPD is warranted because these disorders are the result of his exposure to asbestos during his period of service in the Navy and that service connection for depression is warranted because he received psychiatric treatment in service and his psychiatric impairment, to include a diagnosis of depression, have continued to the present. With respect to the veteran's asbestos related claims, it is noted that, in McGinty v. Brown, 4 Vet. App. 428 (1993), the United States Court of Appeals for Veterans Claims (Court), noting the absence of specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, observed that some guidelines for compensation claims based on asbestos exposure were published in DVB Circular 21-88-8, dated May 11, 1988. The DVB Circular was subsequently rescinded but its basic guidelines are now found in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV- 3 (January 31, 1997); see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, that an asbestos-related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b), p. 7- IV- 3 (January 31, 1997). More recently 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 record; 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); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. In this case, the service department has stated that it is highly probable that the veteran was exposed to asbestos during his Naval service. The evidentiary record includes a partial copy of a decision from the Social Security Administration (SSA) with respect to a claim for benefits filed by the veteran. A copy of the full decision, however, as well as the medical records relied upon for this decision, have not been obtained. In this regard, it is noted that part of the Secretary's obligation is to review a complete record. VA is required to obtain evidence, including decisions by administrative law judges from the SSA, and to give that evidence appropriate consideration and weight. Baker v. West, 11 Vet. App. 163 (1998). Accordingly, the administrative decision and the medical records relied upon for this decision should be obtained and associated with the claims folder. Murincsak v. Derwinski, 2 Vet. App. 363, 369 (1992). The evidence of record also contains a report of VA respiratory examination which includes an opinion that the veteran's asbestos exposure is less likely than not contributing to his pulmonary disease given the short duration of his exposure. Although this examination report reflects that the veteran's claims file, to include his medical records, were reviewed; it is noted that treatment records during his period of employment with Ford Motor Company, from 1976 to 1988, have not been obtained for review. It is further noted that a response from Visteon, the facility from which the copies of the veteran's treatment records during his employment with Ford Motor Company were requested, indicates that no such records have been found. The RO, however, has not inquired as to whether such records may be obtained from alternative sources. Additionally, with respect to the veteran's claim of entitlement to service connection for depression, it is noted that, in December 2002, he provided authorization to obtain treatment records which have not yet been requested. Finally, it is noted that, under the VCAA, the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(1) (West 2002); 38 C.F.R. § 3.159(c)(4) (2002). Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should review the record and send an appropriate letter to the veteran to ensure compliance with all notice and assistance requirements set forth in the VCAA. The RO should advise him of the evidence necessary to substantiate his claims, as well as what evidence he is to provide and what evidence VA will attempt to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his asthma, COPD, and psychiatric complaints prior to, during, and after his period of military service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. In this regard, the attention of the RO is specifically directed to available treatment records from Ford Motor Company as well as the psychiatric treatment which the veteran identified in his December 2002 authorization to release information. 3. The RO should contact the SSA and request all medical records and any administrative law judge decisions pertaining to the veteran's claim for SSA benefits. 4. The veteran should then be afforded an examination by an appropriate specialist to determine the nature and etiology of any current respiratory disorder. All indicated studies must be conducted. The claims file, or copies of pertinent documents located therein, and a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should express opinions as to whether it is at least as likely as not that any current respiratory disability was incurred in service or the result of asbestos exposure in service. The physician should provide the rationale for the conclusions reached and cite the evidence relied on or rejected in forming any opinion. 5. The veteran should also be afforded a VA psychiatric examination to determine the nature and etiology of any psychiatric disorder. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination of the veteran. The examiner is requested to offer an opinion with supporting analysis, as to whether it is at least as likely as not that any current psychiatric disorder had its clinical onset in service. If it is determined that the current psychiatric disability had its clinical onset prior to service the examiner should offer an opinion as to whether it is at least as likely as not that the psychiatric disorder was aggravated (a chronic worsening of the underlying condition versus temporary flare-ups of symptoms) as a result of the veteran's period of military service. A complete rationale for all opinions expressed should be provided. 6. After undertaking any additional development deemed appropriate, the RO should review the entire evidentiary record and review the issues on appeal. If any remaining benefit sought is not granted to the veteran's satisfaction, the RO should issue an appropriate supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until notified by the RO. 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). 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 2002) (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. _______________________________________________ James L. March 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).