Citation Nr: 0937503 Decision Date: 10/01/09 Archive Date: 10/14/09 DOCKET NO. 06-00 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for pulmonary fibrosis, to include as secondary to in-service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.A. Kennerly, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). See 38 U.S.C.A. § 7107(a)(2) (West 2002). The appellant served on active duty from July 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim. In November 2008, the Board denied the appellant's claim. The appellant subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim for pulmonary fibrosis. The Court issued a May 2009 Order vacating, in part, the November 2008 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand. 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 The appellant alleges that he currently suffers from pulmonary fibrosis that is the result of asbestos exposure in service. Specifically, the appellant has alleged that he was exposed to asbestos when he slept under asbestos-wrapped pipes and through the use of asbestos gloves. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2008). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2008). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4- 00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the appellant was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the appellant was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). 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 former 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. See VA O.G.C. Prec. Op. No. 04-00. "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." See McGinty v. Brown, 4 Vet. App. 428, 429 (1993). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21- 1, Part VI, 7.21(c). In compliance with the May 2009 Joint Motion for Remand, the Board finds that the appellant's claim must be remanded to obtain all medical records from F.E.D., M.D. In March 2005, Dr. D. noted that radiographs confirmed a diagnosis of pulmonary fibrosis; however, there are no further medical records associated with the claims file to substantiate this diagnosis. Additionally, Dr. D. should be requested to provide a supporting rationale for his conclusion. The RO/AMC should make all efforts to obtain these missing records. Further, after obtaining the aforementioned evidence, the appellant should be scheduled for a new VA examination. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Colvin at 175. 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) (2008). Expedited handling is requested.) 1. The RO/AMC should issue the appellant a letter, requesting he provide the appropriate authorization and release to obtain any medical records from F.E.D., M.D. Dr. D. should also be asked to provide a statement of how he reached the conclusion that the appellant suffered from pulmonary fibrosis, including a full rationale. All attempts to obtain these records should be memorialized in the appellant's claims file. 2. Thereafter, the appellant should be scheduled for a new VA respiratory disorders examination with the same examiner from the July 2007 VA examination, if possible. Pertinent documents in the appellant's claims file should be thoroughly reviewed in conjunction with the examination, and it should be noted in the examination report that this has been accomplished. The VA examiner should address any newly added evidence from F.E.D., M.D., specifically addressing the assertion that the appellant currently suffers from pulmonary fibrosis. The VA examiner should also request the appellant provide specific details of his exposure to asbestos during his time in service, as well as before and after service. The VA examiner should then state whether it is at least as likely as not that the exposure described by the appellant caused his current diagnosed disabilities. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. 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 appellant 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 appellant until further notice. However, the Board takes this opportunity to advise the appellant 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 appellant 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 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 2002 & Supp. 2009). _________________________________________________ BARBARA B. COPELAND 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. See 38 C.F.R. § 20.1100(b) (2008).