Citation Nr: 0616839 Decision Date: 06/08/06 Archive Date: 06/26/06 DOCKET NO. 04-00 338 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for claimed asbestos- related pleural disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD S. Layton, Law Clerk INTRODUCTION The veteran served on active duty from August 1960 to July 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2003 decision of the RO. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required of his part. REMAND The veteran seeks service connection for asbestos-related pleural disease. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim of service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period 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, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the record shows that the RO complied with M21- 1 procedures. The RO sent the veteran a letter in April 2001 requesting dates and places that the veteran was exposed to asbestos in service, the names of the devices that emitted the asbestos while in service, his military occupational specialty (MOS) at the time of exposure, his organization and rank at the time of each exposure, his complete employment history pre- and post service, his complete medical history, and a detailed description of activities during the period of exposure. In June 2001, the veteran submitted a statement that, as a ship's pipefitter, he was exposed on a daily basis to asbestos and fibrous dust. In a July 2004 hearing, the veteran detailed his exposure to asbestos in the military dating from basic training. The veteran testified that he wore an asbestos suit during firefighting training. Piping systems aboard ships were covered with asbestos insulation, and he would remove it by beating it off with a hammer. He testified that he also used the asbestos insulation to make pillows. The veteran did provide an employment history. After leaving the service, the veteran continued working as a pipefitter in a shipyard for a year. After that, he worked as a plumber in New York City and ended up working for the New York City Transit Authority as an electrician. With respect to the RO's request for a complete medical history, the Board notes that the veteran noted that he had been diagnosed with asbestosis by a private doctor in connection with an asbestos-related lawsuit. The veteran provided the name and address of this doctor on a signed VA form 21-4142(JF) (Authorization and Consent to Release Information to the Department of Veterans Affairs). While the claim file contains two letters from private doctors stating that they reviewed the veterans computed tomography, the results of that computed tomography do not appear in the file. The claim file is devoid of any attempt by the RO to retrieve these medical records and private clinical test reports. The veteran has received three examinations from VA examiners in connection with this claim. The examiner conducting first examination in September 2001 did not have the benefit of the veteran's previous medical history or the claim file. He noted a "normal spirometry,""paradoxical worsening after bronchodilator" and "history of asbestoses". The examiner conducting the second examination in October 2003 stated that he reviewed the medical record and claim file. He conducted a computed tomography and concluded that the veteran had no evidence of asbestos exposure. The examiner conducting the third examination in June 2005 conducted an additional computed tomography. This examiner noted mild posterior pleural thickening, but concluded that there were no findings to suggest asbestosis or asbestos related pleural disease. None of the examiners made an attempt to reconcile their findings with the earlier opinion drafted by the veteran's private doctors. 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 VA 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In April 2001, the veteran was sent a letter detailing what he needed to provide and how VA would assist in developing his claim. The veteran provided the necessary consent to have private medical information released to VA, but VA did not request the medical records from the private doctor. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should send the veteran an appropriate letter notifying him of VA's duty to assist him in the development of his claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. 2. The RO is to ensure that the letter includes, but is not limited to, the five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Also inform the veteran of the following: 1) the information and evidence not of record that is necessary to substantiate each of his specific claims; 2) the information and evidence that VA will seek to provide; 3) the information and evidence that he is expected to provide; and 4) request or tell the veteran to provide any evidence in his possession that pertains to any of his claims, or something to the effect that he should give the VA everything he has pertaining to his claims. 3. The RO should request the veteran's private medical records directly from the appropriate physician. Such records should include, but are not limited to, daily clinical records, physical therapy reports, discharge summaries, consultation reports, X-ray reports, laboratory studies, doctor's notes, nurse's notes, and prescription records. Also, the veteran should be told to provide any such records in his possession. 4. Thereafter, the RO should undertake any other indicated development and then readjudicate the veteran's claim in light of any additional evidence of record. If any benefit sought on appeal is not granted to the veteran's satisfaction, then he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ STEPHEN L. WILKINS 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).