Citation Nr: 0904725 Decision Date: 02/10/09 Archive Date: 02/13/09 DOCKET NO. 05-41 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a perforated right ear drum. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for pes planus. 4. Entitlement to service connection for a respiratory disorder, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran served on active duty from December 1960 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran was scheduled to testify at a Board video hearing in April 2007. However, the veteran failed to report for the hearing as scheduled. 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 has alleged that he has a respiratory disorder as a result of inservice asbestos exposure. Specifically, he stated that he was exposed to asbestos while working as a deckhand in the Navy with chipping paint in the cargo area. A November 1962 service personnel record shows that the veteran was a member of the supply department. As to claims of service connection for asbestosis or other 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). 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 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. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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 United States Court of Appeals for Veterans Claims (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 appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. In this case, the veteran's post service VA treatment reports note diagnoses of chronic bronchitis in April 2002 following a VA examination, and chronic obstructive pulmonary disease (COPD) in May 2002. A persistent cough was noted in July 2005. Although current diagnoses and treatment for respiratory disorders has been shown, the veteran's record is devoid of a diagnosis of asbestosis, or a medical opinion linking his current diagnoses to his period of active service. The Board also notes that, in a February 2005 statement, the veteran reported that his flat feet were aggravated by marching and standing for long periods of time. Further, regarding the veteran's claim for entitlement to service connection for hearing loss, the veteran's representative stated, in January 2006, that it is not uncommon for low ranking sailors on warships to suffer from noise exposure. The Board notes that a veteran's report of what occurred in service is competent and probative evidence. See Washington v. Nicholson, 19 Vet. App. 362 (2005). Additionally, lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In fact, the Court specifically found in Falzone v. Brown, 8 Vet. App. 398 (1995) that pes planus is the type of condition that lends itself to observation by a lay witness. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2008). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410 (2006). Finally, the veteran indicated in a December 2004 statement that he had been awarded Social Security Administration (SSA) benefits. However, the SSA records are not in the claims file. VA has a statutory duty to obtain these records. See 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). The Court has also held that VA has a duty to acquire both the SSA decision and the supporting medical records pertinent to a claim. See Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). These records should be obtained on remand. See also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain from SSA a copy of their decision regarding the veteran's claim for Social Security disability benefits, as well as the medical records relied upon in that decision. 2. The RO/AMC should attempt to verify the veteran's claimed inservice asbestos exposure by contacting the Naval Historical Center, Ships History Branch and the Naval Sea Systems Command or other relevant Department of Defense office, regarding asbestos aboard the ships to which the veteran was assigned. All efforts to obtain these records should be fully documented, and the RO/AMC should request a negative response if records are not available. 3. Should the evidence obtained by the above searches confirm asbestos exposure during service, schedule the appellant for a VA respiratory examination to determine whether the veteran has a current respiratory or pulmonary disorder to include chronic bronchitis, COPD, or asbestosis, due to exposure to asbestos in service. The examiner should review the claims folder prior to examination. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current lung disorder is related to any period of active service to include exposure to asbestos in service. The examiner should discuss the veteran's Navy service as well as his post-service employment history as a Merchant Marine from 1967 to 1981, as well as any other pertinent risk factors for asbestos-related disease or other respiratory disorders. 4. Schedule the appellant for a VA audiological examination to determine whether the veteran has a perforated right eardrum and/or a current hearing loss that is etiologically related to his period of active service. The examiner should review the claims folder prior to examination. The examiner should respond to the following: a). Does the veteran have a perforated right eardrum or the residuals thereof; if so, is it at least as likely as not that the veteran's right eardrum was perforated during his period of active service; b). Does the record indicate that the veteran's hearing loss preexisted his active duty; if so, is it at least as likely as not that any preexisting hearing loss increased in severity during his period of active service; c). If a preexisting hearing loss increased in severity during his period of service, is it at least as likely as not that such increase was due to the natural progression of the disorder, or if not, due to aggravation of the disorder in service; d). If the veteran's hearing loss did not preexist his active duty, is the veteran's current hearing loss otherwise related to his active service. 5. Schedule the appellant for a VA examination to determine whether the veteran's pes planus is etiologically related to his period of active service. The examiner should review the claims folder prior to examination. The examiner should respond to the following: a). Is it at least as likely as not that the veteran's preexisting pes planus increased in severity during his period of active service; b). If the veteran's preexisting pes planus increased in severity during his period of service, is it at least as likely as not that such increase was due to the natural progression of the disorder, or if not, due to aggravation of the disorder in service; c). Is the veteran's current pes planus otherwise etiologically related to the veteran's active service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. 6. The RO/AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If the issues remain denied, the appellant should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ S. L. Kennedy 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) (2008).