Citation Nr: 0331393 Decision Date: 11/13/03 Archive Date: 11/25/03 DOCKET NO. 02-07 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant had active military service from October 1973 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2002 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas. The appellant currently resides within the jurisdiction of the Wichita, Kansas VARO. REMAND In the instant case, the appellant contends that he suffers from asbestosis as a result of asbestos exposure during service as a mechanic. The appellant states that while he was in the military, his Military Occupational Specialty (MOS) was as a mechanic, which involved repairing and rebuilding brake lines, master cylinders, and brake shoe liners, and replacing parts and fluids that contained asbestos. He indicates that while working as a mechanic, he was exposed to asbestos and inhaled asbestos dust. According to the appellant, he has been currently diagnosed with asbestosis, and he maintains that his asbestosis is related to his in-service asbestos exposure. As to claims of service connection for asbestosis or other asbestos-related disease, the Board notes that there has been no specific statutory guidance with regard to these claims, nor has the Secretary promulgated any regulations. However, VA has issued a circular on asbestos- related diseases. This circular, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease, that rating specialists are to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). In this case, the appellant's personnel records show that during service, his MOS was as a fuel systems repair helper. In addition, Enlistment Efficiency Reports (DA Form 2166), from 1975 to 1976, show that the appellant's duty position titles included mechanic maintenance helper, and fuel and electric system repairman. In December 2001, the RO received a private medical statement from B.K.B., M.D., of the Wichita Clinic, dated on May 3, 2001. The May 3, 2001 statement shows that at that time, Dr. B. indicated that he was treating the appellant for several pulmonary and sleep related problems. Dr. B. noted that from a pulmonary standpoint, the appellant's current diagnoses were the following: (1) asbestosis, (2) pleural plaque secondary to asbestos exposure, (3) obstructive sleep apnea, (4) obesity, and (5) restrictive ventilatory defect secondary to numbers one, two, and four above. In January 2002, the RO received private medical records from R.F.S., M.D., of the Wichita Clinic, from December 1999 to January 2001. The records show that in August 2000, the appellant underwent a physical examination. At that time, Dr. S. noted that a review of the appellant's computerized tomography (CT) scan findings showed pleural thickening in the lower base, which was worse on the right than the left, but essentially unchanged from 1995. Dr. S. indicated that in 1995, the appellant became concerned about asbestos exposure because at that time, he was working at a hospital that had a lot of asbestos. The pertinent diagnosis was pulmonary thickening of the lower lung fields. The records also reflect that in November 2000, it was noted that the appellant had been exposed to asbestos while he was working in the maintenance department at the VA Hospital in Topeka, Kansas. In January 2002, the RO received VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The form showed that in July 2001, the appellant was examined by Dr. R.F.S. in order to determine whether he was housebound or in need of the regular aid and attendance of another person. Following the examination, the pertinent diagnosis was asbestosis. In February 2002, the RO received private medical records from Dr. B.K.B., from October 2000 to May 2001. The records reflect that on May 3, 2001, Dr. B. ordered that the appellant have a chest CT scan taken. The chest CT was interpreted as showing the following: (1) no evidence of asbestos exposure or asbestosis, (2) a few small nodules in the right lung which were unchanged and likely represented granulomas, and (3) large depositions of fat in the extrapleural space. In April 2002, the RO received private medical records from Dr. R.F.S., from February 1996 to December 2001. The records show that in March 1998, the appellant had a chest x-ray taken. The x-ray, when compared with a previous study dated in December 1995, was interpreted as showing marked pleural thickening along the right lateral chest wall which appeared thicker than on the previous study. At the costophrenic angle, the thickening measured almost 3 centimeters (cm.) compared to approximately 2 cm. previously. There also appeared to be perhaps a little more pleural thickening along the right lateral chest wall. The lung fields were otherwise clear. The heart was normal in size. Pleural thickening at the apices remained relatively unchanged. No evidence of an acute process was seen. A specific diagnosis was not provided. The records also reflect that in July 2000, the appellant underwent a CT scan of the chest. The chest CT was interpreted as showing the following: (1) stable findings when compared to the prior study of November 1995; pleural thickening was seen both on the right and left, but appeared to be generally stable when compared to the prior study, and (2) attention to the mediastinum revealed no abnormalities. In November 2002, the RO received private medical records from S.D.C., M.D., dated from December 1994 to October 1996. The records show that on October 31, 1995, the appellant had a chest x-ray taken. Dr. C. reported that the chest x-ray demonstrated a right side pneumonia, with some pleural thickening. Dr. C. also stated that the appellant had pneumonia in June, with some thickening at that time, but that there was currently more thickening. According to the records, in November 1995, the appellant had a CT of the chest taken. The chest CT was interpreted as showing the following: (1) infiltrate of the right upper lobe, and (2) evidence of pleural thickening or fluid involving a portion of the pleura of the right lung. The examining physician noted that the right pleural thickening region was seen to be relatively smooth rather than nodular in appearance. The examiner advised that this should be watched as pleural changes had a tendency toward malignancy. In December 2002, the RO received a private medical statement from Dr. B.K.B. In the statement, Dr. B. indicated that he had recently reviewed the appellant's chart in order to answer some of the appellant's questions regarding his asbestos exposure and diagnosed asbestosis. Dr. B. reported that the appellant's diagnosis of asbestosis was based on the fact that there were pleural plaques on the appellant's CT scan, and that that was based on information received at the time of the appellant's initial evaluation which dated back to as far as August 17, 2000. According to Dr. B., the appellant had a history of asbestos exposure and pleural plaques secondary to that consistent with asbestosis. Dr. B. reported that while the pleural plaques may not have technically constituted a case of diffuse asbestosis, it did indeed fit with asbestos exposure and required further follow-up. Dr. B. noted that he would be happy to provide the data that showed the asbestos exposure and pleural plaques dating back to the appellant's first visit of August 17, 2000, and copies of CT reports, dated July 25, 2000, and May 3, 2001. In December 2002, the RO received a copy of a private medical record from P.E.Z., M.D., of the Wichita Clinic, dated in July 2000. The record shows that at that time, the appellant had a chest x-ray taken. The x-ray, which was compared with a previous study dated in March 1998, showed rather marked pleural thickening along the lateral chest walls, bilaterally. Dr. Z. noted that certainly, one would have to consider the possibility of asbestos exposure. According to Dr. Z., there was also some widening of the mediastinum, which was more evident than on the previous study. The heart was within normal limits for size, and no definite evidence of an acute infiltrative process was seen. The impression was that there was marked pleural thickening seen in both lung fields, and that there was also some widening of the mediastinum. In light of the above, the Board notes that there are discrepancies in the medical evidence of record as to whether or not the appellant currently suffers from asbestosis. Specifically, the Board observes that although Dr. B., in his May 3, 2001 statement, diagnosed the appellant with asbestosis and pleural plaque, secondary to asbestos exposure, a CT scan of the appellant's chest which was taken on the same day as the date of Dr. B.'s statement, May 3, 2001, was interpreted as showing no evidence of asbestos exposure or asbestosis. In addition, although Dr. B. submits an additional statement in December 2002, and confirms the appellant's asbestosis diagnosis, and even refers to the May 3, 2001 CT scan in support of the diagnosis, he does not clarify the discrepancy between his diagnosis of asbestosis and the May 2001 CT scan which showed no evidence of asbestos exposure or asbestosis. Moreover, in addition to the discrepancies in the medical evidence regarding the question of whether the appellant currently suffers from asbestosis, it is also unclear as to whether any examiner has specifically determined whether such disability, if extant, is attributable to military service. Therefore, in light of the above, the Board is of the opinion that a VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of any asbestosis. The Board also notes that in the appellant's substantive appeal (VA Form 9), dated in April 2002, the appellant indicated that he wanted a hearing at the RO before a member of the Board. In a letter from the RO to the appellant, dated in December 2002, the RO informed the appellant that he was entitled to select a videoconference hearing before a member of the Board, in place of a Travel Board hearing. The RO notified the appellant that if he accepted a videoconference hearing, he would have to give up his right to an "in person" hearing. In this regard, it appears that although the appellant did not respond to the RO's December 2002 letter, in an August 2003 letter from the RO to the appellant, the RO notified the appellant that a videoconference hearing had been scheduled for September 11, 2003. However, in a Report of Contact (VA Form 119), dated on September 2, 2003, it was noted that the appellant's wife had called to request that the appellant's hearing scheduled for September 11, 2003, be cancelled. It was also noted that according to the appellant's wife, he did not want the hearing to be re-scheduled. Thus, in light of the above and given that the appellant never specifically withdrew his original request for a Travel Board hearing, further action is required to clarify the appellant's desires. It should also be pointed out that, in a decision promulgated on September 22, 2003--Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 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. Sec'y 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 Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) notice under 38 U.S.C.A. § 5103(a) 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 under § 5103(a). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims folder and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2003), and any other applicable legal precedent. The appellant should be specifically told of the information or evidence he needs to submit to substantiate his claim, if any, and of the one-year period allowed for response. 38 U.S.C.A. § 5103(b) (West 2003). The RO should also contact the appellant and ask him to clarify his intent with respect to the previously requested hearing before a member of the Board sitting at the RO. 2. The RO should further contact Dr. B.K.B., of the Wichita Clinic, and request that he clarify the discrepancy between his May 3, 2001 statement, where he diagnosed the appellant with asbestosis and pleural plaque, secondary to asbestos exposure, and the CT scan of the appellant's chest, which was taken on the same day as the date of his statement, May 3, 2001, and was interpreted as showing no evidence of asbestos exposure or asbestosis. It is also requested that Dr. B. submit copies of the reports he referred to in his December 2002 statement, which included records from the appellant's initial visit on August 17, 2000, and CT reports, dated July 25, 2000, and May 3, 2001. 3. The RO should ensure that its efforts to obtain a statement and/or records from Dr. B., and any other additional pertinent medical evidence it tries to obtain, are fully documented in the claims folder. The RO should also search for performance reports prepared during the veteran's military service that might indicate whether the veteran engaged in the sort of activities claimed relative to asbestos. If the RO is unsuccessful in obtaining an opinion and/or records from Dr. B., or any other additional medical evidence, it should inform the appellant and his representative of this and ask them to provide a copy of the requested evidence. 4. After any additional evidence has been obtained and added to the record, the RO should make arrangements with the appropriate VA medical facility for the appellant to be afforded a pulmonary examination to determine the nature and etiology of any asbestosis. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should specifically note the appellant's MOS during service and the activities he participated in as a mechanic. Post- service activities relative to asbestos exposure should also be considered. The examiner should also note the following: (1) the private medical records from Dr. S.D.C., from December 1994 to October 1996, which show that on October 31, 1995, the appellant's chest x-ray was interpreted as demonstrating a right side pneumonia, with some pleural thickening; a November 1995 CT of the appellant's chest that was interpreted as showing the following: infiltrate of the right upper lobe, and evidence of pleural thickening or fluid involving a portion of the pleura of the right lung, (2) the private medical records from Dr. S., from February 1996 to December 2001, which reflect that in March 1998, the appellant's chest x-ray was interpreted as showing marked pleural thickening along the right lateral chest wall; in July 2000, the appellant's chest CT that was interpreted as showing pleural thickening both on the right and left, but appeared to be generally stable when compared to the prior November 1995 study, (3) a copy of a private medical record from Dr. Z., dated in July 2000, which reflects that at that time, the appellant's chest x-ray showed rather marked pleural thickening along the lateral chest walls, and Dr. Z. noted that one would have to consider the possibility of asbestos exposure, (4) the private medical records from Dr. S., from December 1999 to January 2001, which reflect that in August 2000, the appellant was diagnosed with pulmonary thickening of the lower lung fields, (5) the May 3, 2001 statement from Dr. B. where he diagnosed the appellant with asbestosis, and with pleural plaque, secondary to asbestos exposure, and (6) the private medical records from Dr. B., from October 2000 to May 2001, which reflect that on May 3, 2001, the appellant underwent a chest CT which was interpreted as showing no evidence of asbestos exposure or asbestosis. All necessary special studies or tests are to be accomplished. The appellant's employment history and current complaints should be obtained. After a review of the examination findings and the entire evidence of record, the examiner should provide an opinion as to whether the appellant suffers from asbestosis. If the appellant is diagnosed with asbestosis, the examiner should provide an opinion as to the medical probabilities that any currently diagnosed asbestosis is traceable to the appellant's military service. If no such disability is found, or no link to military service is found, such findings and conclusions should be affirmatively stated and explained. A complete rationale for any opinion expressed should be included in the examination report. 5. Thereafter, the RO should thoroughly review the claims file and take all other proper measures to ensure full and complete compliance with the duty-to- notify and duty-to-assist provisions of the VCAA. The RO should also ensure that the VA examination report addresses all questions asked. If it does not, it must be returned to the examiner for corrective action. 6. Then, the RO should review and re- adjudicate the issue on appeal. If any such action does not resolve the claim, the RO should issue 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. 38 U.S.C.A. § 5103(b) (West 2003). In addition, if the appellant notifies the RO that he still wants a Travel Board hearing, the RO should schedule the appellant for a hearing before a member of the Board sitting at the RO. Thereafter, the case should be returned to this Board for further appellate review, if in order. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. No action is required of the appellant until he is notified by the RO. The appellant has the right to submit additional evidence and argument on the matter 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 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. 8.43 and 38.02. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2003).