Citation Nr: 0420875 Decision Date: 07/30/04 Archive Date: 08/05/04 DOCKET NO. 02-19 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for pulmonary emphysema, claimed as secondary to asbestos exposure. 2. Entitlement to service connection for genitourinary disability, claimed as secondary to exposure to lead-based paint. 3. Entitlement to service connection for a liver disability, claimed as secondary to exposure to lead-based paint. 4. Entitlement to service connection for short-term memory loss with a learning disability, claimed as secondary to exposure to lead-based paint. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The veteran served on active duty from July 1965 to July 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision from the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). The claims are being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part concerning these claims. REMAND I. Service Connection for Pulmonary Emphysema, Claimed as Secondary to Asbestos Exposure There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Jan. 31, 1997). Also, an opinion by VA's Office of General Counsel (OGC) discussed the proper way of developing asbestos claims. See VAOPGCPREC 4-00 (Apr. 13, 2000). 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). 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 also may 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 further 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). At the outset, the Board notes that the RO must determine whether any additional development is required to confirm the veteran's pre-service, in-service and post-service exposure to asbestos. See VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (M21-1). When all necessary development has been completed, the RO must obtain a medical opinion to confirm whether the veteran manifests asbestosis and, if so, whether there is any association of such disease to in-service event(s). In statements, the veteran has alleged that his pulmonary disorder, diagnosed as chronic pulmonary emphysema, is attributable to exposure to asbestos in service while serving aboard the U.S.S. Boxer. He also provided information regarding inservice asbestos exposure in a January 2003 reply to the RO's request for such information. The Board notes that service personnel records show that the veteran served aboard the U.S.S. Boxer for most of his active duty. However, the RO has not made a determination regarding whether the veteran has ever been exposed to asbestos or whether there is a relationship between such asbestos exposure and the veteran's chronic pulmonary emphysema. The RO must make these determinations prior to resolution of this claim. II. Service Connection Claims Based on Exposure to Lead- Based Paint "In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim." 38 C.F.R. § 3.159(c)(4)(i). The veteran has not been afforded an examination to resolve the issue of whether any current claimed genitourinary disability, liver disability, or disability manifested by short-term memory loss with a learning disability, was caused by putative inservice exposure to lead-based paint. Therefore, the veteran should be afforded such examinations. Accordingly, this case is REMANDED to the RO for the following development and consideration: 1. Contact the veteran to obtain the information necessary to acquire his complete clinical records pertaining to any treatment for a pulmonary disorder, genitourinary disorder, liver disorder, or disorder manifested by short-term memory loss with a learning disability that are not currently on file. 2. Review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, ensure that the new notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 are fully complied with and satisfied. Also request that the veteran submit all relevant evidence and information in his possession. 3. The RO must determine whether any additional development is required to confirm the veteran's pre-service, in- service and post-service exposure to asbestos per M21-1, part VI, para. 7.21. 4. After the above development has been completed, schedule the veteran for a VA respiratory examination to determine the current nature and etiology of any respiratory diagnosis. Send the claims folder, as well as a copy of this Remand, to the examiner or examiners for a review of the veteran's pertinent medical history. All indicated tests should be performed and those reports should be incorporated into the examination and associated with the claims file. Specifically, the examiner should indicate whether it is at least as likely as not (50 percent or more probability) that the diagnosed pulmonary disorder(s) is etiologically related to the veteran's military service to include in-service exposure to asbestos, if such exposure is found. The examiner should clearly outline the rationale for any opinion expressed and all clinical findings should be reported in detail. 5. After the above development has been completed, the veteran also should be afforded appropriate VA examinations to determine the nature and extent of his genitourinary disorder, liver disorder, and disorder manifested by short-term memory loss with a learning disability, if any. Send the claims folder, as well as a copy of this Remand, to the examiner or examiners for a review of the veteran's pertinent medical history. All indicated tests should be performed and those reports should be incorporated into the examination and associated with the claims file. Specifically, the examiner(s) should indicate whether it is at least as likely as not (50 percent or more probability) that any diagnosed disorder(s) is etiologically related to the veteran's military service to include in-service exposure to lead, if such exposure is found. The examiner should clearly outline the rationale for any opinion expressed and all clinical findings should be reported in detail. 6. Then readjudicate the veteran's claims in light of any additional evidence obtained. If benefits are not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them time to respond before returning the case to the Board for further appellate consideration. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain further development and ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ LAWRENCE M. SULLIVAN 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).