Citation Nr: 0420159 Decision Date: 07/26/04 Archive Date: 08/04/04 DOCKET NO. 03-08 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a lung disorder, claimed as exposure to asbestos. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefit sought on appeal. The veteran, who had active service from February 1942 to October 1945 and from August 1947 to July 1964, appealed that decision to BVA, and the case was referred to the Board for appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND Upon preliminary review of the claims file, the Board finds that additional development is needed in this case before proceeding with appellate review for the reasons set forth below. The veteran has claimed that he was exposed to asbestos while serving as a machinist mate in the United States Navy and that his current lung disorder is related to such exposure. In particular, the veteran testified at a December 2003 hearing before the Board that he became a machinist mate in 1950 and that he was exposed to asbestos in this capacity approximately from 1956 to 1962. He specifically referred to the USS Nantahala. The veteran also submitted a statement in June 2002 in which he contended that he was exposed to asbestos while serving aboard the USS Nantahala and the USS Chukawan. Service records do show that he served as a machinist mate aboard the USS Tutuilla, USS Chukawan, USS Gordius, USS Cadmus, USS Nantahala, and USS Okinawa. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. 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). VA Manual 21-1, Part VI, para. 7.21(b) which pertains to occupational exposure, acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. 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 further 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. M21-1, part VI, para. 7.21(d)(1); see also Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). In the September 2002 rating decision on appeal, the RO stated that the veteran's "personnel file does not confirm asbestos exposure, but the claimant did serve onboard ship as a seaman first class and the findings are consistent with his job duties." The RO went on to deny the veteran's claim on the basis that the evidence of record did not demonstrate a current asbestos related disease. Thus, it appears, that the RO conceded that the veteran was likely exposed to asbestos in service although this is not entirely clear from this statement. The Board notes that while the evidence of record does not confirm the current presence of an asbestos related disease, the Veterans Claims Assistance Act of 2000 (VCAA), which became law in November 2000, requires, among other things, VA to assist a claimant in obtaining evidence. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2003). With respect to his claim for service connection for a lung disorder, treatment records from Montcrief Army Hospital show that he began to complain of shortness of breath in 1968 and that he was diagnosed with mild chronic obstructive pulmonary disease in December 1988. VA outpatient records dated in May 2002 also indicate that the veteran had new onset dyspnea and that a mass-like density was identified abutting the pleura laterally on the left. However, the evidence of record does not include a medical opinion addressing whether a current disorder is related to his possible asbestos exposure or is otherwise related to his military service. Further, although there is no evidence showing complaint, treatment, or diagnosis of bilateral hearing loss in service, the veteran testified at a December 2003 hearing before the Board that he had worked for many years as a machinist mate in the engine room aboard a ship, which his service records confirm. Thus, it appears that the veteran was likely exposed to loud noise during his period of service. Additionally, the veteran stated that two VA physicians had told him that his hearing loss was related to his noise exposure during service. Further, VA outpatient records dated from September 1997 to May 2002 indicate that the veteran had been diagnosed with moderate sensorineural hearing loss in both ears and that he had been issued hearing aids. In light of these circumstances, the Board is of the opinion that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any lung disorder and/or bilateral hearing loss that may be present. Therefore, in order to give the appellant every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, this case is REMANDED for the following action: 1. 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 veteran's claim for service connection for an asbestos- related disease has been properly developed. If deemed necessary, the RO should undertake any additional verification of the veteran's inservice claimed occupational exposure to asbestos aboard naval ships, or otherwise establish that the RO accepts such exposure. 2. The veteran should be afforded a VA examination to determine the nature and etiology of any lung disorder that may be present. All necessary special studies or tests are to be accomplished 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 veteran has asbestosis, or any other asbestos related lung disorder, and, if so, whether it is at least as likely as not that it is related to the veteran's military service, including any in-service asbestos exposure. If no such lung 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. 3. The veteran should be afforded a VA examination to determine the nature and etiology of any bilateral hearing loss that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to indicate whether the veteran has current bilateral hearing loss. If the veteran does have current hearing loss, the examiner is requested to comment on whether it is at least as likely as not that the current disorder is etiologically related to any noise the veteran was exposed to during service, or is otherwise related to his military service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2003), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. _________________________________________________ S. L. Kennedy 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).