Citation Nr: 0827735 Decision Date: 08/15/08 Archive Date: 08/22/08 DOCKET NO. 07-14 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a psychological disorder to include anxiety and post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a lung disorder to include emphysema and chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for residuals status post left lower lobectomy due to lung carcinoma secondary to exposure to asbestos. ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The veteran served on active duty from May 1943 to February 1946. Service during World War II in the Pacific Theatre on board U.S.S. Sterrett (DD 407) is evidenced of record. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claim for service connection for a nervous condition, a lung condition and for residuals of lung cancer claimed secondary to exposure to asbestos during service. The veteran disagreed and perfected an appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 veteran seeks service connection for residuals of lung cancer disorders and COPD, both of which could have been caused by asbestos exposure during service. In substance, he contends that while aboard the USS Sterrett (DD 407) [hereinafter Sterrett], he was exposed to asbestos which was used as insulation on steam piping throughout the ship. He also contends that he suffered a nervous disorder from the stress he encountered while a crewman on the Sterrett. For the reasons set out below, the Board remands the case for further evidentiary development. Initial matter A short factual basis will help clarify one of the reasons for remand. The Sterrett served in combat in the South Pacific Theatre during World War II, including in operations in the Marshal and Marianas Islands, at Leyte Gulf, Guam, Rota Island, Iwo Jima and Okinawa. The Sterrett was damaged in several combat encounters requiring repairs at shipyards, and her crew sustained combat casualties in these encounters. The veteran served as a S1/c [Seaman first class] which means, among other things, that he could have served at any location on the ship during general quarters. The Board notes that general quarters is the condition of shipboard readiness used during combat situations. The September 2006 rating decision concluded that the rating of S1/c would not have had exposure to asbestos. There is no basis for such a conclusion. Reasons for remand 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). This was not done. The Board further notes that the claims for a lung disorder to include emphysema and COPD, and for residuals status post left lower lobectomy due to lung carcinoma secondary to exposure to asbestos, appear to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other in the prescribed degree should not be subject to piecemeal decision-making or appellate litigation]. The present medical record requires clarification by a medical provider before the Board can determine what medical evidence pertains to which claim. Anxiety disorder The veteran's initial claim states that after he was discharged, he sought medical treatment for a "nerve" condition because of he stress he encountered during service. The physician he saw has long since died and the veteran apparently is of the opinion that records of his treatment no longer exist. The veteran also stated that he had to take early retirement from his job and receive disability from the Social Security Administration (SSA). This statement was in the context of the fact that his nerves were "shot." There is no record that the RO attempted to obtain relevant SSA records. In Murincsak v. Derwinski, 2. Vet. App. 363 (1992), the United States Court of Appeals for Veterans Claims held that VA's statutory duty to assist includes obtaining records from SSA and giving appropriate consideration and weight to such evidence in determining whether to award or deny VA disability compensation benefits. Therefore, those records should be obtained. The veteran's January 2008 statement regarding the stressor events he witnessed lays out factual detail that may be easily corroborated by U.S. Navy records regarding the Sterrett. Similarly, those records should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). Expedited handling is requested.) 1. VBA should contact the veteran in writing and request the following information: (1) What were his general quarters or battle stations? (2) What locations within the ship did his duty section serve in and what were his main duties? (3) How was he exposed to gun powder and on how many occasions was he exposed to gun powder? (4) What damage did he witness the USS Sterrett incur during combat events? (5) What injuries did he witness his shipmates incur while on board the USS Sterrett? The veteran should be requested to provide specific information regarding who provided medical or psychological treatment for a nervous condition, when the treatment took place and where the treatment took place. The veteran should also be requested to provide the statements of any person who knows of the treatment he received. Finally, VBA should, to the extent practicable, obtain those records. 2. VBA should contact the SSA and obtain any and all relavant records pertaining to the veteran's claims for entitlement to service connection for lung disorders and a nervous condition. 3. VBA should then review the file and prepare a summary of the veteran's claimed stressors. This summary, together with a copy of the veteran's DD 214, a copy of this remand, and all associated documents, should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC), Kingman Building, Room 2C08, 7701 Telegraph Road, Alexandria, Virginia 22315-3802. That agency should be asked to provide any information that might corroborate the veteran's alleged stressors. Any such response received from JSRRC should be associated with the veteran's VA claims folder. If JSRRC is unable to provide such documentation, VBA should contact appropriate U.S. Navy archive or historical resources and attempt to obtain the relevant information. 4. Following completion of the foregoing development, the veteran should be accorded medical examinations: (a). regarding the veteran's claims for lung disorders, to include emphysema, COPD, and residuals of lung cancer, by a medical practitioner who should ascertain what current disorders, if any, the veteran currently suffers from, and determine the etiology of those lung related disorders. The examiner should review the veteran's claim folder, specifically including this Remand. If any disorder is diagnosed, the examiner should express an opinion whether it is likely as not that the disorder was incurred in service 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. (b). regarding a psychological disorder to include anxiety and/or PTSD, by a psychiatrist, who should ascertain whether a psychological disorder is currently manifested. The examiner should review the veteran's claims folder, specifically including this Remand and the VBA summary of the veteran's claimed stressors. If the examiner deems it to be necessary, psychological or other diagnostic testing should be performed. If a psychological disorder other than PTSD is diagnosed, the examiner should determine whether it is at least as likely as not related to the veteran's active duty service. If PTSD is diagnosed, the examiner should identify the verified stressor(s) that form(s) the basis for that diagnosis. The report of the examination should be associated with the veteran's VA claims folder. 5. 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 claims of entitlement to service connection for lung disorders, including as secondary to asbestos exposure and entitlement to service connection for a psychological disorder to include anxiety and PTSD. 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 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. 2008). _________________________________________________ FRANK J. FLOWERS 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).