Citation Nr: 0815054 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-05 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from November 1960 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran is seeking entitlement to service connection for asbestosis. He claims that he was exposed to asbestos while traveling to and from Germany onboard ship. He also contends that he was exposed to asbestos in the performance of his duties in tanks and armored personnel carriers, as well as in the various buildings in which he was stationed. His report of separation, Form DD 214, listed his inservice specialty as armor intelligence specialist. 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). After reviewing the veteran's claims folder, the Board concludes that additional development is necessary in order to comply with VA's duty to notify and assist. See 38 U.S.C.A. §§ 5102, 5103, 5103A. The RO should attempt to obtain additional information as to whether or not there was pre-service and/or post-service occupational or other asbestos exposure by the veteran. On his VA Form 21-526, filed in March 2007, the veteran indicated that he was a retired pipe fitter. Otherwise, the veteran's claims folder is silent as to the veteran's pre- service and post service employment history. A treatment report, dated in December 1996, was received from D. Gaziano, M.D. which revealed findings of an abnormal chest x-ray. The report also indicated that an x-ray examination of the veteran's chest had taken place at King's Daughter's Hospital. This x-ray examination report, as well as Dr. Gaziano's complete treatment records, is not in the veteran's claims folder. A private treatment report, dated in September 2000, noted a diagnosis of asbestosis. The report, signed by G. Vettiankal, M.D., indicated that the veteran had a history of exposure to asbestos in the work place. Although not included in the claims folder, the report referenced that an "Occupational Asbestos Exposure History" was attached. Under the circumstances of this case, the Board finds that the RO, with the assistance of the veteran, should attempt to obtain complete treatment records from Drs. Gaziano and Vettiankal, and King's Daughter's Hospital. The veteran should be afforded a VA examination to ascertain the current nature and etiology of any lung disorder found. Accordingly, the case is remanded for the following action: 1. The RO must contact the veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for a pulmonary disorder, including asbestosis. The RO must then obtain copies of the related medical records that are not already in the claims file, to include all available treatment records from Drs. Gaziano and Vettiankal, and Kind's Daughter's Hospital, to include the referenced "Occupational Asbestos Exposure History." All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 2. The RO must request that the veteran complete the asbestos questionnaire, or otherwise provide a statement of detailed information (employer, dates of employment, location of employment, job responsibilities, etc.) of any pre- and/or post-service evidence of occupational or other asbestos exposure. If the veteran identifies any instances of pre- and/or post-service occupational asbestos exposure, the RO must attempt to contact the employer identified, and request copies of all available medical records and personnel records indicating the veteran's job duties and any potential occupational exposure to asbestos. 3. Thereafter, the RO must make arrangements to provide the veteran with a VA examination to determine the current existence and etiology of any pulmonary disorder found, including asbestosis. The claims file must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The report should include a detailed history of the veteran's pre- and post-service employment, as well as inservice duties. Thereafter, based upon review of the service and post service medical records, the examiner must provide an opinion as to whether any pulmonary disorder found is related to the veteran's active duty military service, to include asbestos exposure. The examiner must provide an opinion as to whether any pulmonary disorder found is related to any history of pre- or post-service asbestos exposure. If such a determination cannot be made without resort to speculation, the examiner must specifically state this. A complete rationale for all opinions must be provided. The report must be typed. 4. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).