Citation Nr: 0936290 Decision Date: 09/25/09 Archive Date: 10/02/09 DOCKET NO. 07-03 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for asbestosis to include as due to asbestos exposure. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Veteran and J.T., friend ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1951 to July 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for asbestosis, due to asbestos exposure. The Board notes that during the course of the appeal, the Veteran's claims file was temporarily brokered to the Cleveland, Ohio, VA Regional Office. The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in June 2009. A transcript of this proceeding is of record. During the hearing, the Veteran requested a 90-day hold on the case so that additional medical evidence could be submitted. Subsequently thereafter, additional evidence was forwarded to the Board in September 2009. The Board notes that the Veteran has waived initial RO consideration of the new evidence submitted in conjunction with his claim. 38 C.F.R. § 20.1304(c) (2009). 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 asbestosis as a result of in-service asbestos exposure. 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 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. During the June 2009 Travel Board hearing the Veteran testified that serving as a gunner's mate aboard the Landing Ship, Medium Rocket (LSMR) 527 exposed him to asbestos. He explained that he was exposed to asbestos while sleeping around asbestos covered piping on the ship. He further added that he breathed in asbestos while serving in the capacity of a "hot shell man" on a five inch gun mount. A review of the Veteran's DD Form 214 and service personnel records disclose that the Veteran served on board the LSMR- 527. Service personnel records indicate that the Veteran served as a gunner's mate, however, it is unclear from reviewing the Veteran's service records whether he, in fact, was exposed to asbestos. In this case, the RO found that the Veteran had no in-service asbestos exposure. However, the service personnel records reflect service as a truck driver. The RO did not consider such service in light of the above described provisions from the M21-1, which suggest that asbestos was used in World War II, U.S. Navy ships. The earliest evidence of asbestosis is dated in 2000. Beginning in June 2000, the Veteran was diagnosed with asbestosis, as reflected in a June 2000 private medical report. It was reported that the Veteran had been suffering from asbestosis for approximately five to seven years. Thereafter, the Veteran was assessed with asbestosis in February 2004, March 2004, April 2004, and October 2004. In July 2009, a private physician stated that the Veteran's asbestosis is not curable. During the June 2009 Travel Board hearing the Veteran testified that he was exposed to asbestos during military service and after military service while working as a "scrap man" for Armco. However, it is unclear whether the Veteran's current diagnosis of asbestosis is related to exposure to asbestos during or after military service. On remand, the AMC/RO should undertake efforts to obtain additional information that may corroborate the Veteran's claimed in-service exposure to asbestos. The AMC/RO should also schedule the Veteran for an examination to determine whether the Veteran's asbestosis is related to his alleged in-service asbestos exposure or any post-service asbestos exposure. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should consider the Veteran's service personnel records showing an MOS as a gunner's mate and the Veteran's contention that he worked aboard several ships in his job as a gunner's mate in conjunction with the provisions of the VBA Manual M21-1, Part VI, pertaining to asbestos exposure, and a determination should be made as to whether it is as likely as not such service caused asbestos exposure. If further investigation is necessary to make such a determination the AMC/RO should prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any information that might corroborate the Veteran's claimed in- service asbestos exposure from working on World War II Navy ships. Copies of the Veteran's available service treatment records and service personnel records, and his contentions regarding exposure to asbestos should be forwarded to the JSRRC. If indicated by the JSRRC, the AMC/RO should contact the United States Navy and/or the National Archives and request copies of the Veteran's unit records to help answer these questions. 2. After completion of the foregoing, the AMC/RO should arrange for the Veteran to be afforded a VA examination to determine the etiology of his current asbestosis. The AMC/RO must specify for the examiner whether the evidence reflects that the Veteran was exposed to asbestos in service and any potential asbestos exposure after service. The examination report should reflect review of pertinent material in the claims folder. The examiner should opine whether it is at least as likely as not that the Veteran's asbestosis is related to his alleged in- service asbestos exposure or any post- service exposure. The examination report should include the complete rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner prior to the examination. 3. The AMC/RO should then review the record and ensure that all the above actions are completed. When the AMC/RO is satisfied that the record is complete the claim should be readjudicated by the AMC/RO. If the claim is still denied the AMC/RO must furnish the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an opportunity to respond. 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). (CONTINUED ON NEXT PAGE) 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. 2009). _________________________________________________ APRIL MADDOX Acting 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) (2009).