Citation Nr: 0521720 Decision Date: 08/11/05 Archive Date: 08/19/05 DOCKET NO. 03-23 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for pleural disease, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran served on active duty from April 1943 to April 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2001 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in New York, New York. In May 2005 the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. 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 The service personnel records showed that the veteran served in the Navy as a radioman during World War II. He was aboard several vessels, to include the U. S. Armed Merchant Vessel S. S. Belgian Gulf, U. S. S. Keith (DE 241) and U. S. S. Vicksburg. The service medical records are negative for any findings attributable to an asbestos- related lung or pleural disease or exposure to asbestos. A private post-service medical report dated in April 2000, provided a diagnosis of asbestos-related bilateral pleural disease. The clinician based this diagnosis upon consideration of the veteran's history of service as a crew member aboard merchant ships and a sea-serving history that spanned approximately 2 years. He noted that a separate reontgenographic interpretative report of chest films revealed bilateral thickening. In a January 2002 statement, the veteran alleged to have been exposed to asbestos while aboard the U. S. Armed Merchant Vessel S. S. Belgian Gulf. He explained that the vessel was transporting a Panamanian flag that was completely covered in asbestos. He stated that as result of being exposed to the flag while on board the vessel, he developed an asbestos-related condition. At a hearing held on May 2005, the veteran testified that he served in the U. S. Navy as a radioman. He worked in a radio shack. The veteran indicated that he first experienced asbestos exposure-related symptoms in the 1960's. He was treated by a Navy doctor at the time. In support of his claim, the veteran submitted documents from the Maritime Asbestosis Legal Clinic that showed that he had received payment in settlement of a claim against Worthington Pump/Halliburton. The veteran explained that said payment was awarded in settlement of a lawsuit regarding exposure to asbestos while aboard the U. S. Armed Merchant Vessel S. S. Belgian Gulf. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). (Emphasis added.) See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2004). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). In support of his claim, the veteran has submitted a legal document indicating payments received in what he explained was pursuant to a settlement agreement for exposure to asbestos while in service. No details regarding this lawsuit were set forth in these document except for the amount of monetary amounts paid to the veteran. It is unclear from the documents in what court the legal action was filed. The veteran contends that the copy of this document confirms his exposure to asbestos in service. However, while the evidence provided at the May 2005 hearing is indicative that the veteran may have been exposed to asbestos, the documentation that has been provided does not reflect when such exposure was to have taken place. In other words, it does not rule out that the veteran's asbestos exposure occurred after service. When he testified at the May 2005 hearing, the veteran stated that he had received treatment for symptomatology related to asbestos exposure in the 1960's. He indicated that he had been treated by a VA physician who had since retired. There is a possibility that there may be relevant post-service VA medical reports that are not of record. Additionally, the evidence of record does not reflect that the RO has requested records of exposure to asbestos in service to be forwarded to the Navy Medical Liaison Office for determination of exposure to asbestosis. Given the above, the Board believes that further development is necessary to determine if the veteran was exposed to asbestos during service and, if so, whether such is linked to a current lung or pleural disease. In the opinion of the Board, it would be useful if all pertinent documents pertaining to the lawsuit were associated with the claims file. In light of the post-service private medical report dated in April 2000, it is the Board's judgment that a VA examination is warranted. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran through his representative and request that he provide either any documents he has concerning the maritime asbestos-related lawsuit or provide a release allowing VA to request records from the Maritime Asbestosis Legal Clinic concerning the asbestos lawsuit. Any such records so obtained should be associated with the claims file. The RO should also ask the veteran to provide as much detail as possible concerning any duties that may have resulted in exposure to asbestos. 2. The veteran should further be requested to submit all evidence in his possession that pertains to his claim, specifically all medical records in his possession (or copies thereof) and any evidence of medical care dating from his period of active service to the present that may relate to treatment a pleural disease as related to asbestos exposure. 3. The veteran should be afforded a VA social and industrial survey to assess the veteran's employment history. A written copy of the report should be inserted into the claims folder. 4. After considering any additional evidence received pursuant to this remand and all of the applicable law, the RO is requested to make the following finding of fact: Is it at least as likely as not that the veteran was exposed to asbestos during active service. 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 veteran to be afforded a pulmonary examination to determine whether the veteran currently has a diagnosis of pleural or lung disease due to claimed in-service exposure to asbestos. The claims folder must be made available to the examiner for review in conjunction with the examination. The clinician should also determine if additional chest radiographs are necessary. A designated "B reader" radiologist should then read these radiographs. A "B reader" radiologist is one certified by examination to read and grade asbestos films. If the radiologist determines that a high resolution computed tomographic examination of the chest is necessary in order to verify the diagnosis, this should be accomplished. Any other necessary special studies or tests are to be accomplished, to include testing the appellant's sputum for evidence of asbestos fibers. All test results and findings should be included in the claims folder, along with a detailed analysis of those results and findings. The claims folder and this Remand should be reviewed prior to any testing, and said review should be noted in the record. Following the clinical examination and any tests that are deemed necessary, the clinician is asked to opine (a) whether it is at least as likely as not (50 percent or greater probability) that the veteran has asbestos-related lung or pleural disease and, if so, (b) whether it is at least as likely as not that such disease is linked to in-service exposure to asbestos. 6. Thereafter, the RO should review the claims file and ensure that no other notification or development action, in addition to that directed above, is required. If further action is required, the RO should undertake it before further adjudication of the claim. 7. The RO should readjudicate the issue of entitlement to service connection for lung or pleural disease, to include as due to exposure to asbestos with consideration of all of the evidence added to the record since the Statement of the Case (SOC) issued in June 2003. 8. If the benefit requested on appeal is not granted to the appellant's satisfaction, the RO should issue a Supplemental Statement of the Case (SSOC), which should contain notice of all relevant action taken on the claim, to include a summary of all of the evidence added to the record since the June 2003 SOC. A reasonable period of time for a response should be afforded. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). _________________________________________________ R. F. WILLIAMS 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) (2004).