Citation Nr: 0335055 Decision Date: 12/15/03 Archive Date: 12/24/03 DOCKET NO. 02-18 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed to be secondary to asbestos exposure in service. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) and gastritis, to include as secondary to occupational exposure to hazardous substances in service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stanley Grabia, Counsel REMAND The appellant served on active duty from September 1963 to June 1967. This matter is before the Board of Veterans' Appeals (Board) from an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. On November 9, 2000, the Veterans Claims Assistance Act of 2000, 114 Stat. 2096 (2000) (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), went into effect. VA has promulgated revised regulations to implement these changes in the law. 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2003). This law also amended 38 U.S.C.A. § 5103 ("Notice to claimants of required information and evidence") and added 38 U.S.C. § 5103A ("Duty to assist claimants"). The amended duty to notify requires VA to notify a claimant of any information or evidence necessary to substantiate the claim and "which portion of [the] information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 187, 188 (2002). The Board's initial review does not disclose any such communication. The RO, in a letter dated May 16, 2001, the RO informed the veteran of what was involved in the compensation claims process and what was needed in order to establish service connection. No specific information was provided regarding asbestos-related claims. In a statement of the case dated in March 2002, the RO informed the veteran that his claims were denied because there was no evidence to support his contention that he was exposed to asbestos during his military service. However he was not specifically told what information or evidence was need to substantiate his claim or what portion of the needed evidence was to be provided by him and which portion, if any, VA would attempt to obtain. VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21, provides guidance in adjudicating asbestos-related claims. The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. Rating specialists must develop any evidence of asbestos exposure before, during and after service. 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. M21-1, part VI, para. 7.21(d)(1). In April 2001, the veteran filed a claim for asbestos exposure. With his claim he included a March 2001 letter from Ray A. Harron, M.D., who noted that he reviewed the veteran's occupational history, exposure, medical history, as well as an X-ray dated December 2000. He noted the veteran's work history revealed exposure to various asbestos containing products from 1963 to 1980. A B-reading of the chest X-rays revealed bilateral interstitial fibrosis consistent with asbestosis and an enlarged heart. He opined that, On the basis of the occupational history of exposure to asbestos and my B-reading of his chest x-ray, I feel within a reasonable degree of medical certainty that ...(the veteran)... has asbestosis. In May 2001, the RO requested medical treatment records from Dr. Harron. The doctor responded that the veteran had not been his patient and indicated that all records were probably sent to the veteran's attorney. Dr. Harron's letter of March 2001 contains the name and address for the attorney. In a December 2001 examination by Christopher L. John, M.D., it was noted that the veteran was self-referred for evaluation of asbestosis. He had been short of breadth for 4 or 5 years. He was noted to have radiological features of asbestosis in 2001. A respiratory examination revealed a few crackles posteriorly at both bases. Percussion and expansion was unremarkable. Pulmonary function showed a mild restrictive defect with a marginally reduced DLCO. A chest X-ray, as interpreted by the B-reader, revealed bilateral interstitial fibrosis. Dr. John opined that, Based on this gentleman's history of asbestos exposure, his abnormal chest x- ray, and mild restrictive lung disease, I believe that there is beyond a reasonable medical doubt the likelihood that this gentleman does have some degree of asbestos related lung disease. In an August 2002 letter, Dr. John noted the veteran underwent a pulmonary function study, chest x-ray, and physical examination for his lung disease. The pulmonary function test revealed a restrictive defect and marginally reduced DLCO. The chest x-ray was abnormal showing bilateral interstitial fibrosis. Dr. John opined that, Based on these results and his exposure to asbestos while serving in the Air Force from 1963 through 1967, I believe that there is beyond a reasonable medical doubt that this gentleman has asbestos related lung disease. At the outset, the Board notes that a review of the veteran's service medical records reveal several complaints of respiratory and gastrointestinal complaints. In addition it is noted that the veteran was a painter and a protective coating technician in service. As such he was exposed to hazardous materials on a regular basis, as is clearly noted in his service medical records. The RO does not appear to have attempted to contact the Air Force to obtain information to assist in determining whether the veteran's exposure to hazardous materials when he was an Airman included exposure to asbestos. Information which would assist in determining whether or not the veteran's occupational exposure to hazardous materials included exposure to asbestos should be requested by the RO from the Service Department. VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, the VCAA requires that VA afford the veteran a medical examination (or, obtain a medical opinion) when such evidence may aid in substantiating entitlement to the benefits sought. See 38 C.F.R. § 3.159(c). A claim may be decided without providing such assistance only when no reasonable possibility exists that such assistance will aid in the establishment of entitlement, or the record includes medical evidence sufficient to adjudicate the claim. Therefore, the Board finds that, on remand, VA's duty to assist requires that the veteran be provided with VA examinations to obtain medical opinion evidence as to the correct diagnoses assignable to all claimed disorders as well as to the origins and etiology of the veteran's respiratory and gastrointestinal disorders. As a final point, the Board emphasizes that the fact that the Board has identified specific actions to be accomplished on remand does not relieve the RO of the responsibility to ensure that the VCAA has fully been complied with. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA. In light of the above, this case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) is completed. In particular, the RO should notify the veteran of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim and which portion of that information and evidence, if any, is to be provided by the veteran and which portion, if any, VA will attempt to obtain on his behalf. 2. The RO should request the Department of Defense or the U.S. Air Force to provide an information about the duties of the veteran's military occupational specialties, i.e., painter and a protective coating technician, and the likelihood that he was exposed to asbestos while performing his military duties. All evidence received in the course of this development should be associated with the claims folder. 3. The veteran should be asked to identify all medical care providers by whom he has been evaluated or treated for gastrointestinal or lung disorders since his release from service. The RO should attempt to obtain copies of medical records from all sources identified. Additionally, the RO should request copies of pertinent records from the attorney identified in Dr. Harron's letter dated March 10, 2001. 4. The veteran should also be asked to provide details concerning his occupational history prior to and following service, including descriptions of his various occupations. 5. After the above development has been completed to the extent possibly, the veteran should be afforded an examination by a pulmonary specialist experienced in assessing hazardous materials, including asbestos related diseases. The claims folder must be made available to the examiner. Any indicated studies, including X-rays (to be interpreted by a B Reader radiologist if available), should be performed. The examiner should specifically report whether any asbestos- related disorders are or are not demonstrated. After eliciting a history from the veteran as to his possible exposure to asbestos and reviewing pertinent information in the claims file, including any reports received from the service department as to the veteran's in- service exposure to asbestos or other hazardous materials, the examiner should address the following questions: ? Does the veteran have asbestosis or any other pulmonary disorder which may be related to exposure to hazardous materials? ? If so, is it at least as likely as not that the asbestosis or other pulmonary disorder is related to service, including any in-service exposure to asbestos or some other hazardous material? 6. The veteran should be scheduled for a gastrointestinal examination to ascertain whether he currently has GERD and/or gastritis, and whether any current gastrointestinal disorder is related to service, or any in-service exposure to asbestos or other hazardous materials. Any necessary testing should be accomplished. The report of the examination should identify all pathology found to be present. The claims folder must be made available to the examining physician. The examiner should address the following questions: ? Does the veteran have a chronic gastrointestinal disorder which began during his military service or which may be related to exposure to hazardous materials? ? If the veteran has a gastrointestinal disorder which is related to exposure to hazardous materials, is it at least as likely as not that the disorder is related to the veteran's in-service exposure to hazardous material? 7. The RO should then re-adjudicate the veteran's claims, in light of the evidence added to the record since the last Statement of the Case (SOC). If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. 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 2003) (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. _________________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2003), 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) (2003).