Citation Nr: 0402913 Decision Date: 02/02/04 Archive Date: 02/11/04 DOCKET NO. 02-11 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an asbestos-related disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant had active military service from November 1942 to October 1945, and from October 1950 to July 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2002 rating action by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). This appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND In the instant case, the appellant contends that he has asbestosis as a result of asbestos exposure during service. The appellant states that during his first period of active service, from November 1942 to October 1945, he was stationed aboard the USS BARNES. According to the appellant, his bunk was directly below several pipes which were wrapped with asbestos. The appellant notes that one of the pipe's wrapping was unraveling and he would breathe particles while he was in his bunk. As to claims of service connection for asbestosis or other asbestos-related diseases, 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 VA is 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 service medical records show that he served aboard the USS BARNES during his first period of active military service, and aboard the USS HOLDER during his second period of active military service. According to the appellant's Notice of Separation from the U.S. Naval Service from his first period of active service, from November 1942 to October 1945, the appellant served as a steward's mate. It was also noted that the appellant's last employer before entry into service was at the Huntsville Arsenal, and that his usual civilian occupation was as a painter and wallpaper hanger. In the appellant's Report of Separation from the Armed Forces of the United States, from his second period of active service, from October 1950 to July 1951, it was noted that the appellant's main civilian occupation was as a molder, and that his last civilian employer was General Motors. In October 2000, the RO received private medical records from M.H., M.D., at the Center for Occupational and Environmental Medicine, dated in September 2000. The September 2000 records show that the appellant underwent pulmonary function testing. The results of the appellant's pulmonary function testing were interpreted as showing moderate obstructive airways disease. In addition, in a handwritten note, Dr. H. indicated that the appellant's chest x-ray was consistent with asbestosis. Dr. H. further noted that the appellant's pulmonary function testing was consistent with combined obstructive/restrictive defect, and it was Dr. H.'s opinion that the appellant had asbestosis. A private medical statement from D.B., D.O., at the Grand Rapids Home for Veterans, dated in October 2000, shows Dr. B. indicated that there was medical evidence showing that the appellant had an asbestos related disease. In the statement, Dr. B. referred to the medical evidence from Dr. H. and his opinion that the appellant suffered from asbestosis. Dr. B. reported that Dr. H. also performed pulmonary function studies which indicated both obstructive airflow disease and restrictive lung disease, with severe diffusion defects, which typified asbestos of the lung. Dr. B. noted that according to the appellant, while he was in the Navy from 1942 to 1945, he served aboard the USS BARNES and was exposed to asbestos. The appellant reported that his bunk was directly below several pipes which were wrapped in asbestos. Thus, Dr. B. stated that it was his opinion that there was a direct connection between the appellant's in-service exposure to asbestos and his present lung condition and diagnosis of asbestosis. In May 2001, the RO requested that the National Personnel Records Center (NPRC) furnish any service records related to the appellant which showed exposure to asbestos in service or jobs that he performed. In September 2001, the NPRC responded that they had no way of determining to what extent the appellant was exposed to asbestos during his Naval service. The NPRC stated that they knew General Specifications for Ships during that period required heated surfaces to be covered with an insulating material and that it was highly probable that asbestos products were used to achieve that end. According to the NPRC, items that required insulation included piping, flanges, valves, fittings, machinery, boilers, evaporators, and heaters. The NPRC noted that the appellant's occupation was as a "Stewardman (TN)." The NPRC also indicated that the probability of exposure to asbestos was minimal. However, according to the NPRC, a positive statement that the appellant was or was not exposed could not be made. In October 2001, the appellant underwent a VA examination. At that time, the examining physician stated that the appellant did not complete his pulmonary function testing. However, the appellant had a chest x-ray taken which was interpreted as showing chronic obstructive pulmonary disease (COPD) and post inflammatory pleural scarring in the major interlobar fissure inferiorly on the right. Following the physical examination and a review of the appellant's x-ray, the examiner diagnosed the appellant with COPD, with asbestos exposure as likely as not causing the COPD. In a Statement in Support of Claim dated in July 2002, the appellant stated that his previous employment included working at the Huntsville Arsenal and at the Albion Iron Company. The appellant indicated that he assembled bombs on the assembly line at the Huntsville Arsenal. He also noted that at the Albion Iron Company, he worked on a sand belt, filling "hoppers" with sand. In light of the above, the Board notes that in the appellant's October 2001 VA examination, although the examiner diagnosed the appellant with COPD, asbestos exposure as likely as not causing the COPD, the examiner did not address the specific matter under consideration, which is whether the appellant has asbestosis, and if so, whether any diagnosed asbestosis is related to service, specifically any in-service asbestos exposure. Therefore, in light of the above, and given that private medical evidence from Dr. H. shows that it was Dr. H.'s opinion that the appellant suffered from asbestosis, 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. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims folder and ensure that all Veterans Claims Assistance Act of 2000 (VCAA), notice and duty to assist obligations have been satisfied. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant should be again afforded the opportunity to identify or submit any additional pertinent evidence of asbestos exposure in service and a current disorder that is related thereto. In this regard, the RO should specifically request that the appellant identify the names, addresses, and approximate dates of treatment for all VA and non-VA health cared providers who have treated him for asbestosis at any time following military service. With any necessary authorization from the appellant, the RO should attempt to obtain copies of pertinent treatment records identified by the appellant in response to this request, which have not been previously secured. 2. The RO should ensure that its efforts to obtain any additional pertinent medical evidence are fully documented in the claims folder. If the RO is unsuccessful in obtaining any additional pertinent medical evidence, it should inform the appellant and his representative of this and ask them to provide copies of the outstanding medical records. 3. The RO should again 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 determine if the appellant's claim for service connection for an asbestos- related disease has been properly developed. 4. The RO should contact the veteran and request that he submit a complete and specific employment history prior to his periods of service and subsequent to his separation from service in 1951 until the present. If necessary, the RO should obtain the appropriate release of these records from the veteran. 5. 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 and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished, to include testing the appellant's sputum for evidence of asbestos fibers, high resolution x-rays and a computerized tomography scan if determined by the examiner to be necessary to obtain a fully informed diagnosis. After a review of the examination findings and the entire evidence of record, the examiner should render an opinion as to whether the appellant has asbestosis, or any other asbestos related lung disorder, and, if so, whether it is related to the appellant's military service, including any in-service asbestos exposure (assuming for examination purposes the accuracy of the appellant's history). If no such disability is found, or no link to military service is found, such findings and conclusions should be affirmatively stated and explained, and a complete rationale for any opinion expressed should be included in the examination report. The report prepared should be typed. 6. The appellant 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 (2003). In the event that the appellant 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. 7. Thereafter, the RO should 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. 8. The RO should then review and re- adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the appellant and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. No action is required by the appellant 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). FINALLY, THE BOARD NOTES THAT THE VETERAN IS 78 YEARS OF AGE. Hence, this claim must be afforded expeditious treatment by the RO. 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 Supp. 2002) (Historical and Statutory Notes); see M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ JOY A. MCDONALD 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) (2003).