Citation Nr: 0533008 Decision Date: 12/06/05 Archive Date: 12/21/05 DOCKET NO. 04-26 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service in from June 1959 to July 1962 and April 1963 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. REMAND 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 the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. The U.S. Court of Appeals for Veterans Claims (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 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1 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, and military equipment. 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). M21-1 (M21-1), Part VI, § 7.21 b. 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 (M21-1), Part VI, § 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). In this case, the Board finds that the RO needs to obtain pertinent information on the veteran's post-service employment and provide a VA medical examination and medical opinion. The record indicates that the veteran was diagnosed with asbestosis in February 1995. A July 2003 Asbestos Evaluation Summary from a private practitioner indicates that the veteran's asbestosis is a result of his history of exposure to asbestos from his work in the military or his post-service employment. In this case, the veteran claims that he was exposed to asbestos during his active duty. The veteran also appears to claim he was exposed, after service, to asbestos while working as a welder. The RO attempted to obtain the veteran's private medical records from the veteran's private practitioners. Three of the veteran's doctors did not send records to VA. The requests sent to Dr. "A. A.," M.D. and Dr. "D.D.," M.D. were returned by the post office due to incorrect addresses. As part of VA's duty to assist, if a letter is returned to VA because of an incorrect address, VA must contact the veteran to obtain the correct address. After the RO sends the follow-up letter to the veteran, it is the veteran's responsibility to provide a correct address for his doctor. 38 C.F.R. § 3.159(c)(1)(i) (2005). The RO did not send the veteran a letter requesting correct addresses for Drs. A.A. and D.D. Dr. "C.B.," M.D. did not respond to the letter sent by the RO. Under VA's duty to assist the veteran in obtaining private medical records, if a private doctor does not respond to a letter, a follow-up request must be sent to the doctor. 38 C.F.R. § 3.159(c)(1) (2005). The RO did not send Dr. C.B. a follow-up request. The information of record indicates that the veteran may be involved in a private legal action regarding occupational asbestos exposure. If the veteran is (or was) involved in such a lawsuit, in the opinion of the Board, it would be useful if all pertinent documents pertaining to that lawsuit were associated with the claims file. On remand, the veteran should be asked if he filed a lawsuit to see if there is additional information that might pertain to his claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC for the following actions. VA will notify the veteran if further action is required on his part. 1. The RO should send a follow-up letter to the veteran to inform him that the requests sent to Drs. A.A. and D.D. were returned with incorrect addresses. The RO should also send a follow-up records request to Dr. C. B. The veteran should be asked for the correct address. 2. The RO should ask the veteran if he is involved in a private lawsuit against a post-service employer for occupational asbestos exposure. If the veteran is (or was) involved in a private lawsuit, even if he did not prevail in the claim, the RO should request that the veteran submit to VA copies of all documents related to the lawsuit, including briefings, pleadings, and medical records not previously supplied by the veteran's attorney. 3. The RO should refer the veteran's claims file to an appropriately qualified physician and provide the veteran with a VA medical examination opinion as to the likelihood, i.e., whether it is at least as likely as not, that the veteran's current asbestosis is etiologically related to his military service June 1959 to July 1962 and April 1963 to April 1966. . After reviewing the veteran's service and post-service medical records, his post- service employment history (to include any possible asbestos exposure), and other relevant evidence of record, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran's asbestosis is a result of his active military service. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. If any benefit sought remains denied, the veteran and his representative should be provided a supplemental statement of the case, which reflects consideration of all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ JOHN J. CROWLEY 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) (2005).