Citation Nr: 0802655 Decision Date: 01/24/08 Archive Date: 01/30/08 DOCKET NO. 06-24 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from July 1961 to July 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify provide notification when further action is required on the part of the veteran. REMAND The veteran asserts that service connection for asbestosis is warranted because he was exposed to asbestos while on active duty, was treated for lung problems during service, and did not have any post-service asbestos exposure. The veteran contends that his first exposure to asbestos occurred at Lackland Air Force Base where the siding on the barracks was made from asbestos. The veteran testified, however, that his research revealed that the asbestos used in those barracks was not harmful. Instead, the veteran asserts that he believes he was exposed to harmful asbestos when he was stationed at Kunsan Air Force Base in Korea. He asserts that the barracks were being rebuilt and, although he did not live in those particular barracks, all of the barracks surrounding his were demolished and created a large amount of dust that covered everything, including his clothes and his bed. The evidence does not show, nor does the veteran allege, that he had an occupation during service with higher incidents of asbestos exposure. See M21-1, Part VI, par. 7.21(b)(1). Indeed, the veteran's service personnel records show his military occupational specialty was a policeman. Instead, as noted, the veteran's argument is based upon indirect exposure from the demolition of barracks he believed were insulated with asbestos. In support of his claim, the veteran points to service medical records which show he was treated for lung problems during service. Service medical records show that, in March 1962, the veteran was admitted to the hospital after complaining of chest pain and difficulty breathing that started two hours earlier while he was on guard duty. A chest X-ray revealed calcified nodes in the right hilar region with no evidence of acute process. The diagnosis was an undetermined viral infection. The veteran was given medication and released to duty. The service medical records are negative for any subsequent complaints, treatment, or findings involving a lung disorder. However, a chest X-ray conducted at the veteran's June 1965 separation examination revealed calcifications in the right hilar region. The first time the veteran is shown to have a diagnosis of asbestosis is in September 2000. At that time, a chest X-ray revealed bilateral interstitial fibrosis that was determined to be consistent with asbestosis and bilateral pleural disease consistent with asbestos-related disease. In February 2004, a Dr. C.L.J. evaluated the veteran and noted that he had a history of asbestos exposure from 1962 through 1982 working as a laborer and had been short of breath for the past 35 years. Dr. C.L.J. noted the findings of the September 2000 chest X-ray and reported that pulmonary function tests revealed a moderate obstructive defect with a severe diffusion defect. Dr. C.L.J. stated that, based on the veteran's industrial history, abnormal chest X-ray, and pulmonary function, he believed beyond a reasonable medical doubt that the veteran has evidence of asbestos-related lung disease. As noted, the veteran asserts that he did not have any post- service asbestos exposure; however, the Board notes the veteran testified that his post-service employment included working for a pipe company that manufactured plastic pipes and a company that refined aluminum ore. See May 2006 DRO hearing transcript; May 2007 video conference hearing transcript; see also February 2004 private medical record from Dr. C.L.J. The evidence also shows the veteran stopped smoking more than 12 years ago, but used to smoke a half pack of cigarettes a day for 8 years. See February 2004 private medical record from Dr. C.L.J. In claims of service connection for asbestosis or other asbestos-related diseases, VA must analyze the veteran's claim under the guidelines set forth in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). These provisions were recently rescinded and are now found at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, which was effective from December 13, 2005. The guidelines provide, in part, 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 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. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty, Vet. App. at 432. The veteran's service medical records reflect the veteran was shown to have calcifications in his lungs during service and at separation, and there is a medical statement which indicates that the veteran's current asbestosis may be associated with his service. Although the record contains a medical opinion addressing the veteran's current diagnosis of asbestosis, that opinion in equivocal, at best, in terms of establishing a nexus between the veteran's current diagnosis and his military service, because Dr. C.L.J. reported the veteran was exposed to asbestos both during and after his military service. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). A medical opinion is required to determine whether the veteran's condition is related to exposure to asbestos in service or post-service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, this case is REMANDED to the RO for the following development: 1. Take appropriate action to develop evidence of the veteran's asbestos exposure before, during, and after his active service, to specifically include seeking information as to whether any barracks at Kunsan Air Force Base during the period from July 1961 to July 1965 were constructed of materials containing asbestos. 2. Thereafter, the veteran should be afforded a VA examination by a pulmonary specialist to determine the current nature and likely etiology of his lung disease. The claims folder must be made available for review by the examiner in conjunction with the examination. Any indicated studies should be conducted. Based on the examination and review of the record, the examiner should provide a medical opinion as to whether the veteran, at least as likely as not, has any lung disability due to asbestos exposure. If it is found that the veteran does have asbestos-related disability, the examiner should further opine whether such disability is, at least as likely as not, related to asbestos exposure in service. The examiner should specifically comment upon the role of post-service asbestos exposure and should address Dr. C.L.J.'s February 2004 opinion. The examiner must explain the rationale for all opinions given. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise informed. 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). 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ M.E. LARKIN 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) (2007).