Citation Nr: 0704542 Decision Date: 02/14/07 Archive Date: 02/22/07 DOCKET NO. 95-18 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for service connection for transitional cell cancer of the right kidney, status post nephroureterectomy. 2. Entitlement to a rating in excess of 60 percent for chronic bronchitis with residuals of pleural effusion from March 30, 1994 until September 8, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The veteran and his spouse (Regional Office Hearing in June 1997) The veteran and his son (Central Office Hearing in October 1998) ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from May 1943 to April 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1994 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied an increased rating for residuals of pleural effusion, rated as 10 percent disabling. The veteran perfected an appeal as to that issue. In April 1997, the Board remanded this case. In June 1997, the veteran testified before a hearing officer at the RO. In a January 1998 rating decision, service connection was granted for chronic bronchitis which was evaluated with the veteran's service- connected pleural effusion. A 30 percent rating was assigned effective March 30, 1994, date of the claim. The RO indicated that this action satisfied the appeal. The United States Court of Appeals for Veterans Claims ("the Court") held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet .App. 35, 38 (1993). Consequently, the matter of the evaluation remained in appellate status. In October 1998, the veteran testified at a personal hearing before the undersigned in Washington, D.C. The issue of an increased rating for pleural effusion/chronic bronchitis was addressed as well as other matters before the Board at that time. In a February 1999 decision, the Board rendered a determination as to other issues on appeal and remanded the matter of the increased rating for pleural effusion/chronic bronchitis. In a January 2000 rating decision, service connection for transitional cell cancer of the right kidney, status post nephroureterectomy, was denied. The veteran perfected an appeal as to that issue. In June 2000, the RO increased the 30 percent rating to 60 percent for chronic bronchitis with residuals of pleural effusion, effective March 30, 1994, again the date of the claim. In November 2003, the Board remanded this case. In a May 2006 rating decision, the RO granted a 100 percent schedular rating for chronic bronchitis with residuals of pleural effusion, effective September 8, 2004. Thus, the issue of an increased rating for chronic bronchitis with residuals of pleural effusion, from September 8, 2005, was resolved. However, the matter of an increased rating in excess of 60 percent for chronic bronchitis with residuals of pleural effusion from March 30, 1994 until September 8, 2004, remained in appellate status. Nevertheless, the RO considered the May 2006 adjudicatory action to be a complete grant of benefits on appeal and discontinued considering and including this issue in the subsequent May and August 2006 supplemental statements of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board recognizes that this case has been advanced on the Board's docket due to age and also that the veteran is in receipt of a total schedular rating with special monthly compensation. However, unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. As noted and as pointed out by the veteran's representative, in the May 2006 rating decision, the RO failed to consider the issue of entitlement to a rating in excess of 60 percent for chronic bronchitis with residuals of pleural effusion from March 30, 1994 until September 8, 2004. Likewise, the May and August 2006 supplemental statements of the case did not address this issue. Accordingly, on remand, this issue must be considered and addressed as the issue of a higher evaluation for chronic bronchitis with residuals of pleural effusion has not been granted the maximum available rating for the entire period of the appeal. See AB. Regarding the issue of service connection for service connection for transitional cell cancer of the right kidney, status post nephroureterectomy, subsequent to the Board's February 1999 remand, a request was made in April 1999 by the RO for records of asbestos exposure during service or jobs the veteran performed indicative of asbestos exposure. This action does not appear to have been completed. In June 1999, correspondence was received from the veteran regarding his alleged asbestos exposure. He alleged that during his service aboard naval ships, he was exposed to asbestos in conjunction with his duties involving cleaning of various areas aboard ship to include from waterlines, steam pipes, stoves, and boilers, which were insulated with asbestos. He reported that often the insulation was torn. In addition, the veteran related that he was also exposed to other hazardous materials including cleaners, industrial coatings, paints, lubricants, solvents, preservatives, and primers containing heavy metals. These metals contained lead, mercury, graphite, zinc chromate, and other materials. The veteran stated that he served aboard the USS Wesson and the USN PC-1142. He also attended the United States Naval Apprentice School. As to claims of service connection for 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). See also Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual 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, 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 this case, this veteran served aboard Navy vessels during World War II. 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. VAOPGCPREC 4-00. 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). Thus, VA must analyze the veteran's claim of entitlement to service connection under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). 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 has not complied with M21-1 procedures. The veteran has provided information regard his alleged asbestos exposure. Therefore, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service. There has been no such determination. The veteran has provided a medical statement from P.J.H., M.D., who stated that transitional cell carcinoma is an unusual illness and "certainly may be exposure related." The physician noted that the veteran was apparently exposed to asbestos and other agents during service. This opinion is speculative. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The veteran is hereby notified that he may submit a more definitive opinion. VA obtained a medical opinion dated in March 2006. The examiner indicated that he had referenced Campbell's Urology, which he referred to as the "semi-definitive textbook of Urology" which did not indicate that asbestos, lead, or mercury can cause transitional cell cancer. The examiner noted that the most common cause was smoking which was not present in the veteran. Thus, he stated that it was his opinion that the etiology of the veteran's transitional cell cancer was unknown. However, conversely, the veteran has submitted medical treatise evidence which shows that asbestos is in fact a risk factor for developing transitional cell cancer. However, this evidence addresses transitional cell cancer in a generic sense. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). In light of the foregoing, the Board finds that a VA medical opinion must be obtained. The physician should consider the determination of whether or not the veteran was exposed to asbestos or other hazardous material during service. The physician should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the veteran's transitional cell cancer of the right kidney is related to service, to include asbestos exposure, if he was so exposed. Accordingly, this matter is REMANDED for the following actions: 1. Taking into consideration M21-1, Part VI, a determination should be made as to whether the veteran was exposed to asbestos or other hazardous material during service. 2. The veteran may submit private medical evidence in support of his appeal, to include a clarifying statement from P.J.H., M.D., which includes a rationale for the opinion. 3. Obtain a VA medical opinion. The claims file must be made available to the physician and the physician indicate in his/her report whether or not the claims file was reviewed. The physician should consider the determination of whether or not the veteran was exposed to asbestos or other hazardous material during service. The physician should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the veteran's transitional cell cancer of the right kidney is related to service, to include asbestos exposure, if he was so exposed. A rationale for any opinion expressed should be provided. Consideration should be given to the treatise evidence contained in the claims file. 4. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record: (1) Entitlement to service connection for service connection for transitional cell cancer of the right kidney, status post nephroureterectomy; and (2) Entitlement to a rating in excess of 60 percent for chronic bronchitis with residuals of pleural effusion from March 30, 1994 until September 8, 2004. If any issue remains denied, the veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 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). _________________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2005), 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) (2006).