Citation Nr: 0930665 Decision Date: 08/17/09 Archive Date: 08/27/09 DOCKET NO. 06-08 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for emphysema, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1964 and from November 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) from an October 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2009, the Veteran presented sworn testimony during a personal hearing in Muskogee, Oklahoma, which was chaired by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that in personal statements as well as in his Board hearing testimony, the Veteran expressed the desire to expand his claim to include entitlement to service connection for a generalized lung disorder, to include as due to asbestos exposure. The October 2004 rating decision, the statement of the case, and the supplemental statements of the case addressed the narrow issue of entitlement to service connection for emphysema, to include as due to asbestos exposure. Therefore, the Board finds it would be improper to adjudicate a broader claim of entitlement to service connection for a generalized lung disorder. See 38 C.F.R. §§ 19.29, 19.31 (2008); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the claim of entitlement to service connection for a generalized lung disorder (to exclude emphysema), to include as due to asbestos exposure, is referred to the RO for appropriate action. 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 on his part. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim. The Veteran has reported that his currently diagnosed emphysema was caused by asbestos exposure while serving on Navel and Coast Guard ships in the early 1960's. Specifically, he has alleged that his military occupational specialty, deckhand, required that he not only spend time removing asbestos from insulated pipes but sleep in cabins that contained powder, which he later determined was asbestos dust. He also reported that he was exposed to asbestos in that he slept below the asbestos-coated flight deck and was stationed on ships while they were in dry dock undergoing repairs. In this regard, the Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA Office of General Counsel has discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The Board also notes that the aforementioned provisions of M21-1 have been rescinded and reissued, as amended, in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos- Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." Moreover, the United States Court of Appeals for Veterans Claims has held that VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related diseases under these administrative protocols using specific criteria. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Specifically, the Board must consider the latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in a number of lung disorders. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9b. While the list does not specifically list emphysema, that omission is not fatal to the Veteran's claim because the M21-1MR only says that the listed disease processes may be caused by asbestos exposure and does not exclude other disease processes, such as emphysema. Id. As to occupational exposure, the M21-1MR notes that exposure to asbestos has been shown in cases, such as the current one, where Veteran's worked around insulation and in shipyards. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. The Veteran's service personnel records document the fact that he served aboard the U.S.S. PINE ISLAND from May 1961 to May 1964, the U.S.S. CORAL SEA from May 1964 to September 1964, and the U.S.C.G.C. TANEY from February 1965 to January 1966. In addition, the Board finds that the Veteran is both competent and credible to report that his duties included removing insulation from pipes as well as to report that he saw white dust on his bunk. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the Veteran also testified that following his separation from active duty he spent approximately the next forty years serving in the Merchant Marines carrying out the same type of duties he carried out for the Navy and Coast Guard. He also testified that he had smoked for over forty years. Given the above record and the M21-1MR development guidelines, the Board finds that a remand is required to find out if any of the ships the Veteran served on where in dry dock for repairs during his time in service, to obtain from the Veteran a post-service work history, and to obtain an addendum to the October 2005 VA examination that (taking into account the claimant's in-service and post-service work history as well as his smoking history) provides a medical opinion as to the origins of his currently diagnosed emphysema. See 38 U.S.C.A. § 5103A(b), (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006); M21- 1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. While the appeal is in remand status, the RO/AMC should also obtain and associate with the record the medical records the Veteran testified where being held by his attorney in connection with his asbestos action and the records he previously identified at Urgent Care of Green County. See 38 U.S.C.A. § 5103A(b) (West 2002). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should provide the Veteran an updated Veterans Claims Assistance Act of 2000 (VCAA) notice letter in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5103, 5103A (West 2002 & Supp. 2009); and 38 C.F.R. § 3.159 (2008). 2. The RO/AMC should obtain any outstanding VA treatment records from October 2007 to the present. If no VA treatment records are available, this should be memorialized in the Veteran's claims file. 3. The RO/AMC should again, after obtaining all needed authorizations, obtain and associate with the record the Veteran's records being held his attorney and U.C.O.G.C. If the records cannot be located or no such records exist, the Veteran should be notified in writing. All actions to obtain the requested records should be memorialized in the Veteran's claim's file. 4. The RO/AMC should contact the Navy and the Coast Guard and ascertain if the U.S.S. PINE ISLAND (from May 1961 to May 1964), the U.S.S. CORAL SEA (from May 1964 to September 1964), and/or the U.S.C.G.C. TANEY (from February 1965 to January 1966) had been in dry dock undergoing repairs. If this information is unavailable, this should be memorialized in the Veteran's claim's file and the Veteran notified in writing. Because this information is found in Federal records, if it cannot be secured, a written unavailability memorandum must be prepared and added to the claim's folder and the Veteran offered an opportunity to respond. See Bell v. Derwinski, 2 Vet. App. 611 (1992). 5. The RO/AMC should contact the Veteran to request he provide a statement as to his post-service employment history, which includes the approximate dates of his employments and the nature of his duties at each of his places of employment. The Veteran should also indicate whether he was required to participate in any annual examinations for such employment. 6. After undertaking the above development to the extent possible, the RO/AMC should obtain an additional medical opinion to supplement the October 2005 VA examination. The claim's file and a copy of this remand should be forwarded to the examiner. Based on a review of the claim's folder as well as the detailed employment history with respect to potential exposure to asbestos, the examiner should answer the following questions: (a) Is it at least as likely as not (i.e., 50 percent or greater degree of probability) that the Veteran has emphysema? (b) If so, is it at least as likely as not (i.e., 50 percent or greater degree of probability) that the Veteran's emphysema began during service or is causally linked to any incident of service, to include his claimed in- service asbestos exposure, as opposed to his post-service employment and his history of smoking? (c) The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely as not" support the contended causal relationship; "less likely as not" weighs against the claim. The examiner is requested to provide a thorough rationale for any opinion expressed and note that the claims file has been reviewed in conjunction with the opinion. 7. After completing the above action 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 should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2008). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009). _________________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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. See 38 C.F.R. § 20.1100(b) (2008).