Citation Nr: 0631726 Decision Date: 10/12/06 Archive Date: 10/16/06 DOCKET NO. 04-41 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to in-service asbestos exposure. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION This case comes before the Board of Veterans Appeals (the Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (the RO). Procedural history The veteran served on active duty from June 1963 to December 1967. The RO received the veteran's claim in February 2004. The May 2004 rating decision denied the claim and the veteran appealed. The veteran provided personal testimony at a videoconference hearing which was chaired by the undersigned Veterans Law Judge in May 2006. A transcript of the hearing has been prepared and is associated with the veteran's VA claims folder. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. Issues not on appeal In May 2005, the RO received the veteran's claim to reopen a previously denied hearing loss claim and to reopen a previously denied claim for service connection for peripheral neuropathy. The RO denied these claims in an August 2005 rating decision. To the Board's knowledge, the veteran has not appealed that decision. The issues addressed in those decisions are thus not in appellate status, and they will not be mentioned any further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. REMAND The veteran seeks service connection for COPD caused by asbestos exposure during service. In substance, he contends that while assigned to the USS Colonial (LSD 18) and USS Point Defiance (LSD 31), he was exposed to asbestos which was used as insulation on steam piping he repaired throughout the ship. For the reasons set out below, the Board remands the case for further evidentiary development. Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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 United Sates Court of Appeals for Veterans Claims (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. See 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). 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. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Reasons for remand In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. A brief review of the evidence will illustrate the evidence that requires development. In this case, relating to element (1), the file includes a diagnosis of COPD. Regarding element (2), in-service incurrence, the Board finds credible the veteran's testimony to the refect that he was exposed to asbestos while working aboard ships. As noted above, asbestos has been used extensively in the past in ship construction. This element has also been arguably satisfied. With regard to element (3), VA medical examinations conducted in January and July of 2004 were not focused on the etiology of the veteran's COPD, and they particularly did not address the veteran's contentions regarding asbestos exposure. The Board further notes that the file contains an opinion dated October 2004, based on a review of the veteran's medical file. The opinion specifically states that the file did not contain current PFT results and intimated that the opinion was based on incomplete records. The issue raises questions that must be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2005) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, a medical examination is in order to determine the etiology of veteran's COPD. This case is therefore REMANDED for the following actions: 1. The veteran should be accorded an examination by a medical practitioner who should determine the etiology of the veteran's COPD. The examiner should review the veteran's claim folder, specifically including this Remand. The examiner should express an opinion whether it is likely as not that COPD was incurred in or due to his naval service, and in particular as a result of the veteran's claimed exposure to asbestos. Any appropriate diagnostic testing, including pulmonary function testing and/or radiographic studies, should be undertaken, if deemed to be necessary by the examiner. The report of the examination should be associated with the veteran's VA claims folder. 2. Following the completion of the foregoing, and after undertaking any additional development which it deems to be necessary, VBA should then readjudicate the veteran's claim of entitlement to service connection for COPD due to asbestos exposure. If the benefits sought on appeal remain denied, in whole or in part, VBA should provide the veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 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). _________________________________________________ Barry F. Bohan 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).