Citation Nr: 0327746 Decision Date: 10/16/03 Archive Date: 10/28/03 DOCKET NO. 02-02 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran served on active duty from March 1956 to May 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied service connection for asbestosis. In April 2003, the veteran testified at a videoconference hearing, a transcript of which has been associated with the claims folder. The issues on appeal before the Board had included entitlement to an increased disability rating for service- connected duodenal ulcer. However, in a VA Form 21-4138, Statement In Support Of Claim, dated in April 2003, the veteran withdrew his appeal on that issue. REMAND VA sets forth information about disease related to asbestosis exposure and provides specific procedures for the development of evidence pertaining to claims for service connection for asbestosis. ADJUDICATION PROCEDURE MANUAL, M21-1, Part VI, 7.21 (M21-1). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. M21-1, Part VI, 7.21a(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. The risk of developing bronchial cancer is increased in current cigarette smokers who have had asbestos exposure. Mesotheliomas are not associated with cigarette smoking. Lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. All persons with significant asbestosis develop cor pulmonale. M21-1, Part VI, 7.21a(3). In this case, the veteran has submitted a report, dated in July 1990, from a private physician, I. K. Sharpe, M.D., in which she noted that a pulmonary function survey made in her office that day reflected isolated severe maldiffusion which was worsened by the severely elevated carboxyhemoglobin. She also noted that a chest x-ray revealed small, irregular densities in the bases more than the apices and there were bilateral pleural plaques. Dr. Sharpe's impression was asbestosis and asbestos-related pleural disease. On a private chest x-ray report, dated in February 1993, from the Institute of Industrial and Forensic Medicine, the examiner interpretation was asbestosis and noted that a complication was cor pulmonale. In addition, the record contains a discharge summary from a private hospital in Florida showing that the veteran was in the hospital from June 29, 1979, to July 6, 1979, for complaints of right pleuritic chest pain. Chest x-rays and lung scan were negative. Pulmonary function tests showed normal spirometry. There was mild decrease in diffusing capacity, and helium lung volumes indicated restrictive defect consistent with pleuritis and mild hypoxia. The impression included left pleuritic chest pain and fever of unknown origin and cigarette bronchitis. When considering claims for service connection based on asbestos exposure, the RO must determine whether or not military records demonstrate evidence of asbestos exposure in service and must also assure that development is accomplished to determine whether or not there is pre-service and/or post- service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. M21-1, Part VI, 7.21d. The manual provisions also note that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. The latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, 7.21b. In this case, the veteran has acknowledged that he had some exposure to asbestos before and after service. However, he contends that by far the most exposure he had was during his period of service. In the July 1990 report from Dr. Sharpe, she noted the veteran's history of the first exposure being at 10 years of age when he helped place asbestos siding on a house. At the hearing before the Board, the veteran testified that this day when he helped his father put asbestos shingles on the side of a house was his only pre-service exposure to asbestos. Dr. Sharpe also noted that at age 12 the veteran worked in a service station and worked as a carpenter's helper for 6 months before entering the Air Force. The veteran acknowledged at the hearing before the Board that he worked in a service station during the summers when he was in high school and that about twice during a summer he would change brake shoes. Dr. Sharpe noted that in service the veteran worked as a cryogenic fluid production technologist producing liquid oxygen, carbon dioxide, and nitrogen, and that he wore asbestos gloves. The veteran testified at the Board hearing that this job involved transferring fluid production from a tank to a portable tank and that he wore asbestos gloves doing this work. He also stated that when there was a leak in one of the lines, he had to solder it and he used an asbestos blanket to keep everything else from catching fire. The RO obtained the veteran's AF Form 7, Airman Military Record, which confirms his specialties in service as fluid production technician and gas generator plant operator, and the veteran testified that these two jobs were the same but that the name was changed during his time in service. The AF Form 7 shows that the veteran worked in one or the other of these capacities from April 1958 to June 1962 and from September 1963 to May 1964. Dr. Sharpe also noted that the veteran worked in Jacksonville Shipyards as an electrician's helper for 8 or 9 months and then worked in construction as an electrician's helper for one year. She stated that since 1966 the veteran worked out of the International Brotherhood of Electrical Workers and traveled around the country. He was still working in this capacity at the time of Dr. Sharpe's July 1990 examination. Dr. Sharpe noted that examples of asbestos exposure in addition to the experience the veteran had at 10 years of age included working in the service station, wearing the asbestos gloves in service, and asbestos abatement in Manhattan. The veteran testified at the Board hearing that during the years working as an electrician he had no exposure to asbestosis to his knowledge except that he worked one day in New York in an area with asbestos. The Board concludes that, based on the history of asbestos exposure and Dr. Sharpe's diagnosis, the case must be remanded for a VA examination for an examiner to confirm the diagnosis and render an opinion as to the likelihood of a relationship between asbestos exposure in service and a current lung disorder. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2003). Finally, the Board notes that in a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, - 7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. Accordingly, this claim is REMANDED for the following action: 1. Review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. 2. Ask the veteran to provide a list of all VA and non-VA health care providers that have treated him for his lung condition since his separation from service. Make attempts to obtain all identified records. 3. Ask the veteran to submit a complete and specific employment history from his separation from service in 1964 until the present, to include an explanation of duties in each place of employment. 4. Make arrangements for the veteran to be afforded an examination by a pulmonary specialist in asbestos related disorders. The claims file and a copy of this remand must be made available to and reviewed by the doctor prior and pursuant to conduction of the examination. The examination report should reflect that the claims file was reviewed by the examiner in conjunction with the examination. The examiner should order any tests or special studies that the examiner decides are needed to provide the medical information required by this remand. 5. The examiner is to provide a diagnosis of any lung disorder found on examination. The doctor must discuss the prior medical evidence in detail and reconcile contradictory evidence, if any, to include the July 1990 diagnosis of Dr. Sharpe. The doctor must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the doctor's conclusion. If the examiner renders a diagnosis of a current lung disorder, the examiner must provide an opinion as to whether it is as likely as not that the lung disorder is due a disease or injury in service, including asbestos exposure in service, as opposed to some other factor or factor including asbestos exposure before and after service. 6. Review the claims folder and ensure that the foregoing development actions have been conducted and completed in full. Specific attention is directed to the examination report. Ensure that the medical report is complete and in full compliance with the above directives. If the report is deficient in any manner or fails to provide the specific opinions requested, it must be returned to the doctor for correction. 38 C.F.R. § 4.2; see also Stegall v. West, 11 Vet. App. 268 (1998). Also, ensure that no other notification or development action, in addition to those directed above, is required is required by the VCAA. If further action is required, undertake it before further claim adjudication. 7. Thereafter, readjudicate the veteran's claim for service connection for a lung disorder. If the benefits sought on appeal remain denied, provide the appellant with a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claims, 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, the claim is to be returned to the Board, following applicable appellate procedure. The veteran need take no action until he is so informed. He 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 purposes of this REMAND are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this 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 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. _________________________________________________ KATHLEEN K. GALLAGHER Acting 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).