Citation Nr: 0612653 Decision Date: 05/02/06 Archive Date: 05/15/06 DOCKET NO. 04-19 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for uveitis, to include as due to tetrachloride exposure and asbestos exposure. 2. Entitlement to service connection for neurosarcoidosis with myelopathy and optic nerve involvement, to include as due to tetrachloride exposure and asbestos exposure. 3. Entitlement to service connection for anemia, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from March 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. A hearing was held on February 2, 2005, in St. Paul, Minnesota, before Kathleen K. Gallagher, a Veterans Law Judge,, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. 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 Reasons for Remand: To provide the veteran with a proper VCAA notification letter; to obtain additional treatment records, employment records, and Social Security Administration records; to verify in-service exposure to asbestos; and, if necessary, to afford the veteran a VA examination. The Veterans Claims Assistance Act of 2000 (VCAA) provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2005). 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 (2005). The United States Court of Appeals for Veterans Claims (Court) has held that the failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA would seek to provide and which evidence the claimant is to provide, is remandable error. In this case, it does not appear that the veteran has been adequately notified of the VCAA in connection with his claim for service connection for anemia. In this regard, the record contains VCAA letters dated in March 2003 and April 2003, which were sent in connection with the veteran's claim for service connection for anemia. However, those letters did not notify the veteran as to what evidence is necessary to substantiate his claim for service connection for anemia. The Court has indicated that such specific notice is required to comply with the VCAA. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or an effective date for the disabilities on appeal. As those questions are involved in the present appeal, this case must be remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the type of evidence that is needed to establish a disability rating and an effective date. In addition, it appears that there may additional treatment records not associated with the claims file. In this regard, the Board notes that the veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), in May 2003 in which he indicated that he had received treatment at the Courage Center and at Abbott Hospital. He also testified at his February 2005 hearing that he had been treated by Dr. Troutman, Dr. Atkinson, Dr. Excela, and Dr. Levage. However, the claims file does not contain any treatment records from these medical centers and health care providers, and there is no indication that an attempt was made to obtain such records. In addition, the veteran submitted a statement in May 2003 in which he indicated that he had sought treatment at the VA Medical Center in St. Cloud, Minnesota. However, the evidence of record does not include any VA medical records. Such records may prove to be relevant and probative. Therefore, the RO should attempt to obtain and associate with the claims file any and all treatment records pertaining to the veteran's uveitis, neurosarcoidosis, and anemia. Further, the Board observes that the veteran is in receipt of monthly benefits from the Social Security Administration (SSA). In this regard, the claims file contains a notice of the award indicating that the veteran was found to be disabled as of June 1, 1997. However, the records upon which this decision was based are not associated with the claims file, and it is unclear as to whether any of the records pertain to the veteran's uveitis, neurosarcoidosis, or anemia. Therefore, the RO should obtain and associate such records with the veteran's claims folder. Additionally, the Board notes that the veteran testified at his February 2005 hearing that he was provided two physical examinations by his civilian employer following his separation from service. He noted that the second examination involved additional blood work, but he was unaware as to the reason for it. Such records may prove to be relevant and probative. Therefore, the RO should attempt to obtain and associate with the claims file the veteran's employment records, including physical examination reports. Further, the veteran has claimed that he was exposed to asbestos while serving in the United States Navy and that his current uveitis, neurosarcoidosis, and anemia are related to such exposure. In particular, the veteran testified at the February 2005 hearing that he served onboard the USS Belle Grove as an electrician and that he was exposed to asbestos in this capacity approximately from December 1962 to July 1966. In particular, he noted that he worked with the ventilation systems without any protective equipment. The veteran's service records do show that he served as an electrician aboard the USS Belle Grove. 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). When considering VA compensation claims, VA has the responsibility for ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and to assure that development is accomplished to ascertain whether or not there is pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information noted above. As always, the reasonable doubt doctrine is for consideration in such claims. Since the veteran served in the Navy, the RO should contact the Naval Sea Systems Command (SEA 00D) with regard to verifying asbestos exposure in service. Lastly, the Board notes that the veteran has not been afforded a VA examination in connection with his current claims for service connection for uveitis, neurosarcoidosis, and anemia. If it is established that the veteran was exposed to asbestos and/or tetrachloride in service, the RO should provide the veteran with a VA examination to determine whether the veteran's current uveitis, neurosarcoidosis, and anemia are related to such exposure. 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, the case is REMANDED for the following actions: 1. The RO should send the veteran a VCAA letter in connection with his claims for service connection for uveitis, neurosarcoidosis, and anemia. The letter should inform him of the information and evidence that is necessary to substantiate the claims; (2) inform him about the information and evidence that VA will seek to provide; (3) inform him about the information and evidence he is expected to provide; and (4) ask him to provide any evidence in his possession that pertains to the claim. The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006). 2. The RO should request that the veteran provide the names and addresses of any and all health care providers who have provided treatment for his uveitis, neurosarcoidosis, and anemia. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for VA medical records as well as for treatment records from the Courage Center, Abbott Hospital, Dr. Troutman, Dr. Atkinson, Dr. Excela, and Dr. Levage. 3. The RO should obtain and associate with the claims file the records upon which the Social Security Administration (SSA) based its decision to award benefits to the veteran. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 4. The RO should obtain and associate with the claims file the veteran's employment records from Excel Energy, formerly know as NSP, including physical examination reports. 5. 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. The RO should undertake any additional verification of the veteran's in-service claimed occupational exposure to asbestos aboard naval ships, including the USS Belle Grove, by contacting the following office: Naval Sea Systems Command (SEA 00D) Congressional and Public Affairs Office 1333 Isaac Hull Avenue SE Washington Navy Yard, DC 20376 POC: Ms. Patricia Dolan 6. If in-service exposure to asbestos and/or tetrachloride is verified, the veteran should be afforded a VA examination to determine the nature and etiology of his uveitis, neurosarcoidosis, and anemia. 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 comment as to whether it is at least as likely as not that the veteran's uveitis, neurosarcoidosis, and/or anemia is causally or etiologically related to his verified in-service exposure to asbestos and/or tetrachloride or is otherwise related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.) 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 (2005), 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. _________________________________________________ KATHLEEN K. GALLAGHER 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).