Citation Nr: 0718241 Decision Date: 06/18/07 Archive Date: 06/29/07 DOCKET NO. 04-30 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Associate Counsel INTRODUCTION The appellant in this case is a veteran who served on active duty in the Army from February 1962 to February 1964. His DD Form 214 lists his military specialty as a wheel vehicle mechanic. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in May 2004, a statement of the case was issued in June 2004, and a substantive appeal was received in August 2004. The veteran requested a Board hearing; but he withdrew that request in August 2006. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on his part. REMAND Preliminary review of the medical evidence in this case shows a difference of opinion on the threshold question of whether or not the veteran currently suffers from asbestosis. Private examiners have interpreted x-ray studies as showing evidence of asbestosis, but a VA examiner in November 2003 concluded that there was no evidence of this disability. The VA examiner relied on the results of a CT scan which the examiner opined was a more accurate indicator of asbestosis. Under the circumstances, the Board believes additional medical development is necessary to fully assist the veteran with his claim. With regard to arguments raised as to asbestos exposure, the Board notes that 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) (DVB Circular) 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 States Court of Appeals for Veterans Claims (hereinafter 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. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). 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 Court has further held that in adjudicating asbestos- related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are 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). Accordingly, the case is hereby REMANDED for the following actions: 1. The veteran should be scheduled for a VA examination by an appropriate medical doctor specializing in asbestos-related disease. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests or studies (i.e. x-ray, CT scan, pulmonary function tests) should be accomplished. After reviewing the claims file and clinical and special test findings, the examiner should clearly report whether or not a medical diagnosis of asbestosis is warranted. If so, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the asbestosis is causally related to any inservice exposure as opposed to any post-service exposure. 2. After completion of the above, the RO should review the veteran's claim in accordance with all M21-1 guidelines regarding asbestos-related claims. If the benefit sought remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ____________________________________________ ALAN S. PEEVY 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) (2006).