Citation Nr: 0432246 Decision Date: 12/06/04 Archive Date: 12/15/04 DOCKET NO. 03-16 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a respiratory disorder, to include restrictive airway disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The veteran served on active duty from December 1963 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 decision of the in Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Consistent with the instructions below VA will notify you of the further action required on your part. REMAND The veteran and his representative contend that the appellant's current respiratory disorders were caused by exposure to asbestos while sleeping in old barracks in boot camp and/or while serving on the USS Halsey from November 1964 to February 1968. It is requested that the veteran be afforded the benefit of the doubt. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), requires VA to obtain and associate with the record all adequately identified records. See 38 U.S.C.A. § 5103A(b) (West 2002). In this regard, the veteran notified VA that he received all of his health care from the Boston VA Medical Center, that a physician at that facility diagnosed an asbestos related lung disease, and that in April 2003 he was diagnosed with asbestos related restrictive airway disease at "BMH, Boston." The record does not, however, include his VA treatment records from the Boston VA Medical Center dated from 1968 to 1990, it does not include a request for a statement from the VA physician the appellant reported diagnosed him with asbestos related lung disease, and it does not include medical records from "BMH" Boston. [n.b. The veteran should identify precisely which facility is "BMH" Boston.] Therefore, a remand is required to secure these records. Likewise, while the representative, in a January 2004 statement, reported that a January 10, 2002, treatment record from Dr. Abraham Zimelman diagnosed asbestosis, this record is not found in the claims file. The record also does not include the veteran's treatment records from Winchester Hospital despite VA treatment records making numerous references to his treatment at this facility. Finally, given the extent of the medical problems noted in VA treatment records, the appellant should be asked if he has filed for and/or is in receipt of Social Security Administration (SSA) disability benefits. If so, medical records used by the SSA should be obtained. The VCAA also requires that VA provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has stated that 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). In this regard, service personnel records show the veteran served aboard the USS Halsey. The VA Adjudication Procedure Manual (M21-1) lists service aboard naval ships as a risk factor for asbestos exposure (see M21-1, Part VI, par. 7.21(b)(2)). The appellant reports that post service he worked in an occupation that could not have exposed him to asbestos, VA treatment records show that he has had a problem with left pleural thickening since December 1998, and a December 2001 VA treatment record diagnosed asbestos disease strongly supported by x-rays. In contrast, however, a March 2002 VA examiner opined that the veteran did not have asbestosis. Asbestos exposure has been linked to a number of other respiratory disorders besides asbestosis. See M21-1, Part VI, par. 7.21(a)(1) & (2) (i.e., asbestos has been show to be a contributing factor in interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract.). Accordingly, since the VA examiner did not provide an opinion as to the relationship, if any, between currently diagnosed respiratory airway disease and the claimant's military service, as no opinion addressed his in-service and post- service job histories, and as the latency and exposure information noted at M21-1, Part III, par. 5.13(a) must be considered, a remand is required to obtain such an opinion. Lastly, given the above development and VA's duty to notify the veteran of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant, on remand, the RO should continue to provide him with updated VCAA notices. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the appeal is REMANDED for the following: 1. The RO must review the claims file and ensure that all M21-1 development obligations and VCAA notice obligations have been satisfied in accordance with Quartuccio; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159; the Veterans Benefits Act of 2003; and any other applicable legal precedent. a. As to the M21-1 development, such development includes, but is not limited to, the following actions: (1) determining whether military records demonstrate evidence of asbestos exposure in service; (2) determining whether there was pre-service and/or post- service evidence of occupational or other asbestos exposure; and (3) determining if there is a relationship between asbestos exposure and the currently claimed disease in light of the latency and exposure information found at M21-1, Part III, par. 5.13(a). b. As to the VCAA development, such notification includes, but is not limited to, notifying the veteran of the specific evidence needed to substantiate the claim. The RO must provide a letter which: (1) notifies the claimant of the specific information and evidence not of record that is necessary to substantiate the claim; (2) notifies him of the specific information and evidence that VA will seek to provide; (3) notifies him of the specific information and evidence the claimant is expected to provide; and (4) requests that he provide all pertinent evidence in his possession that has yet to be submitted to VA. The veteran should be notified that he has one-year to submit pertinent evidence needed to substantiate his claim. The date of mailing the veteran notice of the VCAA begins the one-year period. 2. The RO should obtain from the veteran a statement as to his post-service work history. That statement should include a description of each of his job duties. The veteran should precisely identify the facility he has named "BMH Boston." 3. The RO, after obtaining any needed authorizations, should obtain and associate with the record the following records: Boston VA Medical Center records dated from 1968 to 1990, the January 10, 2002, treatment record from Dr. Abraham Zimelman, and all pertinent post-February 2002 treatment records; all pertinent "BMH" Boston records; and all pertinent Winchester Hospital records. If any of the requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran notified in writing. 4. The RO should contact the veteran and ask him to obtain a statement in support of claim from the physician at the Boston VA Medical Center that diagnosed him with an asbestos related lung disease. 5. The RO should contact the veteran and ask if he applied for and/or is in receipt of Social Security Administration disability. If the veteran replies in the affirmative, the RO should thereafter obtain these records. If the records are not available, or if the search for the records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran notified in writing. 6. After associating with the record all evidence obtained in connection with the above development (to the extent possible), the RO should forward the claims file to the March 2002 VA examiner. Based on a review of the claims folder, the examiner should address whether there is current evidence of any respiratory disorder to include a respiratory disorder due to asbestos exposure. If so, the examiner should address whether it is at least as likely as not that any currently diagnosed respiratory disorder was incurred in or aggravated by military service? Note: In answering the above questions, the examiner must comment on the veteran's in-service and post-service work histories, and all chest x-ray reports of record. 7. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 8. Thereafter, following any other appropriate development, the RO should readjudicate the issue on appeal in a rating decision. If the benefit sought on appeal remains denied, he and his representative should be provided a Supplemental Statement of the Case which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. 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). _________________________________________________ DEREK R. BROWN 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 Court. 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).