Citation Nr: 0936349 Decision Date: 09/25/09 Archive Date: 10/02/09 DOCKET NO. 08-10 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a chronic lung disease, to include bronchitis, chronic obstructive pulmonary disease, and asbestosis. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active military service from June 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Providence, Rhode Island, which denied the Veteran's claim of entitlement to service connection for bronchitis. The Veteran filed a notice of disagreement in July 2007, and a statement of the case was issued in March 2008. In April 2008, the Veteran submitted a substantive appeal (VA Form 9). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2009. A copy of the transcript of that hearing is of record. At the time of the Travel Board hearing, the medical evidence of record showed that the Veteran had been diagnosed with bronchitis in February 1995. The evidence further indicated that pulmonary function tests taken in February 2005 were interpreted as showing mild obstructive lung disease. Thus, at the Travel Board hearing, the issue on appeal was characterized as entitlement to service connection for a chronic lung disease, to include bronchitis and chronic obstructive pulmonary disease (COPD). Following the Travel Board hearing, in August 2009, the Veteran filed a claim of entitlement to service connection for asbestosis. In support of his claim, he submitted private medical records which showed that in December 2008, he underwent pulmonary function tests which were interpreted as showing asbestosis. The Court of Appeals for Veterans' Claims (Court) recently held in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), that that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Therefore, in consideration of the holding in Clemons, the Veteran's claim on appeal reasonably encompasses his diagnosed asbestosis; that is, rather than a new claim, his claim for service connection for asbestosis is considered a part of the claim that is already on appeal. Id. Accordingly, the Board has recharacterized the issue on appeal as set forth on the title page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that during service in United States Navy, he was exposed to asbestos while serving aboard numerous ships, including the USS Donner and the USS Ashland, which were World War II era ships and had asbestos-containing materials. The Veteran states that one of his duties aboard ship (a temporary assignment duty (TAD)) was as a compartment cleaner which involved cleaning the boiler rooms. The Veteran notes that the boiler rooms were five or six decks below with no ventilation. According to the Veteran, he was exposed to peeling paint and dust which included asbestos fibers and/or particles. The Veteran further indicates that when he was not on TAD, he was assigned to spray paint trucks and jeeps and he was exposed to the fumes from the spray paint. He maintains that due to his in-service exposure to asbestos and spray paint, he developed a chronic lung disease or diseases, to include bronchitis, COPD, and asbestosis. The Veteran's service records show that he served in the United States Navy from June 1968 to April 1972. The Veteran's military occupational specialty (MOS) was BM (Boatswain's Mate). According to the service records, his responsibilities as a BM included supervising and assisting in maintaining and repairing A-3 vehicles and equipment. He was also assigned compartment cleaner, vehicle cleanup, and to the vehicle paint team. Service records further show that he served aboard numerous ships, including the USS Donner and USS Ashland. In this case, although specific incidents of asbestos exposure are not confirmed by the records, the Board notes that in the past, Naval ships utilized asbestos in many capacities, and especially as the Veteran's service many years ago and on older ships, there is little doubt that asbestos would have been present on the ships the Veteran served aboard. Therefore, the Board concedes that the Veteran was exposed to asbestos during service. In February 2008, the RO requested a VA medical opinion. The RO noted that according to the Veteran's service treatment records, the Veteran was initially treated for bronchitis in November 1970 and continued to have problems for the next year. He was noted to be a heavy smoker. Post-service medical evidence showed that during a February 1995 emergency department visit, the Veteran was diagnosed with bronchitis. In May 2003, he was hospitalized for chest pain of non- cardiac origin, and pulmonary function tests taken in February 2005 were interpreted as showing mild obstructive lung disease. The RO requested that the Veteran's file be reviewed to determine whether or not his in-service episode of bronchitis was related to his currently diagnosed chronic obstructive lung disease. In a March 2009 opinion, a VA pulmonary physician observed that while the Veteran was in the military, he was diagnosed with bronchitis that was related to his smoking. In regard to the question of whether the Veteran's currently diagnosed COPD was related to his in-service treatment for bronchitis, the physician reported that the last medical records pertaining to the Veteran's bronchitis while he was in the military indicated that the condition had improved with decreased smoking and no subsequent evaluations for that condition occurred while he was in the service, or subsequently until the 1995 emergency department visit. According to the doctor, there was no evidence offered to show that the bronchitis diagnosed in 1995 did not resolve or continued to cause symptoms meriting medical attention or treatment. The Veteran's pulmonary function tests of 2005 showed that the Veteran had mild COPD. The physician noted that there was no clinical evidence offered aside from the pulmonary function tests to indicate any subsequent diagnosis or treatment for obstructive lung disease. The Veteran was hospitalized for chest pain in 2003, but the diagnosis at that time was chest pain of non-cardiac origin with no indication of a diagnosis of lung disease as a cause. According to clinician, bronchitis could be either acute or chronic in nature. Chronic bronchitis was typified by chronic cough with sputum production occurring at least three months of the year for two consecutive years. The physician stated that no evidence was offered of that condition. Acute bronchitis was by definition limited in time. Therefore, no relationship between the Veteran's bronchitis in 1971 and his bronchitis in 1995 would be expected, unless the underlying condition was chronic bronchitis and the latter was not supported by the records. Thus, in light of the above, the VA physician concluded that it was less likely as not that the Veteran's COPD was the result of or related to the Veteran's bronchitis condition as diagnosed in 1971. Upon a review of the March 2008 VA medical opinion, although the examining physician addressed the pertinent question of whether the Veteran's currently diagnosed COPD was related to his period of service, specifically to his in-service treatment for bronchitis, the clinician did not address the other pertinent question in this case, which is whether the Veteran's COPD was related, at least in part to his in- service exposure to asbestos. In the March 2008 opinion, the VA physician stated that he could not resolve whether the Veteran's bronchitis while in the service was the result of his exposure to asbestos, compartment cleaners, and/or spray paint without resorting to speculation. He did report, however, that no relationship to the Veteran's work duties was noted at that time, and that the Veteran's condition improved during service with decrease in cigarette use. Nevertheless, in light of the above, and given that the current evidence shows a diagnosis of asbestosis, something that was not shown at the time the clinician. provided his opinion in March 2008, the Board finds that a comprehensive VA pulmonary examination must be afforded to determine the nature and etiology of any lung disease that is currently present, to include bronchitis, COPD and asbestosis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to 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 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. While the Veteran was on active duty from June 1968 to April 1972, he did serve aboard WW II Navel ships. 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. 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 view of the foregoing, the case must be REMANDED for the following action: 1. The Veteran should be scheduled for a pulmonary examination by a specialist in pulmonary diseases. The claim's file should be forwarded to the examiner. Following a review of the service treatment records and relevant post- service medical records, to include the March 2008 VA medical opinion, obtaining the Veteran's military and employment history, the clinical examination, and any tests that are deemed necessary, to specifically include (given that private medical evidence shows a current diagnosis of asbestosis) appropriate X- rays, which should be reviewed by a designated "B reader" radiologist (i.e., one certified by examination to read and grade asbestos films), the examiner should address the following questions: (a) What pulmonary diseases does the Veteran currently have? (b.) Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran has asbestosis? (c) Is it at least as likely as not (50 percent or greater degree of probability) that any lung disease that is currently present, to specifically include bronchitis, COPD, and/or asbestosis, began during service or is due, at least due in part, to any incident of active duty, to include exposure to asbestos and/or an in- service episode of bronchitis? 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 support the contended causal relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and is advised that if a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 2. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran 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). _________________________________________________ R. F. WILLIAMS 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).