Citation Nr: 1021823 Decision Date: 06/14/10 Archive Date: 06/24/10 DOCKET NO. 06-21 687 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to service connection for a lung disorder, to include an acute flash pulmonary edema, chronic obstructive pulmonary disease (COPD), and asthmatic bronchitis, to also include as due to asbestos exposure. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Daniels, Law Clerk INTRODUCTION The Veteran served on active duty from May 1968 to March 1970. This case initially came before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the RO. The medical evidence shows that although the Veteran raised a claim of entitlement for service connection for pulmonary edema as due to asbestos exposure specifically, there is evidence that he has a diagnosis of COPD and asthmatic bronchitis associated with the same symptoms. The Court of Appeals for Veterans Claims (Court) recently found that the use of "condition(s)" in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the matter on appeal as stated on the preceding page. The the issue of service connection for renal stenosis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ 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. Further action on the issue of a TDIU rating is deferred pending completion of the requested development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). REMAND After a careful review of the claims folder, the Board finds that the Veteran's claim must be remanded for further action. 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 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. While the Veteran was on active duty from May 1968 to March 1970, he worked as a wheeled vehicle mechanic. 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. The Veteran's DD Form 214 indicates that he served as a wheeled vehicle mechanic during service. The January 1969 service treatment record (STR) notes treatment for a cough while the December 1969 STR notes treatment for an upper respiratory infection. In an October 2000 statement C.R.B., M.D., provided current diagnoses of COPD, asthmatic bronchitis and history of acute flash pulmonary edema. In a February 2005 application for special monthly compensation the Veteran indicated that from October 1998 to December 1998 he had worked as a truck driver for Dobson Trucking. In a June 2006 substantive appeal the Veteran indicated that he was exposed to asbestos in the buildings, barracks, work areas, and by handling parts manufactured with asbestos such as heater cores. In a May 2010 Informal Hearing Presentation, the Veteran's representative indicated that because of the nature of the Veteran's job in service not only is it likely that the Veteran was exposed to asbestos, but he was exposed to harmful chemicals in the various fuels and maintenance fluids that may have caused his current lung disorders. Additionally, the Veteran has not been afforded a VA examination to assess the etiology of his current lung disorder. Under 38 C.F.R. § 3.159(c)(4), a VA medical examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Here, VA treatment records show a current medical diagnosis of a pulmonary edema, asthma and COPD and lay evidence of possible exposure to asbestos (and other chemicals) in service, but there is insufficient evidence to determine whether current lung disease is related to exposure to asbestos or otherwise related to service. Consequently, a VA examination to obtain a medical opinion is indicated. As noted, further consideration of the matter of a TDIU rating must be deferred at this time. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. The Veteran also should be informed that he may submit evidence to support his claim. The RO should obtain all of the Veteran's pertinent VA treatment records. The RO should obtain any outstanding private treatment records, particularly records from Surry Medical Specialists, P.A., from May 2004 to present. All attempts to obtain these records should be documented in the claims folders. The RO should continue its attempts to obtain these records until it is reasonably certain that further attempts would be futile or that the records do not exist. The RO's letter should invite the Veteran to furnish all evidence in his possession, and identify what evidence is ultimately his responsibility to obtain. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. The RO should send the Veteran an asbestos exposure questionnaire. He should be informed that he needs to provide a complete history of his employment before and after service as well as his smoking history. He should also state whether he is receiving disability benefits from the Social Security Administration or other agency. 4. Then, 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, 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 pulmonary edema, COPD, and asthmatic bronchitis) 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 any lung disease that is currently present, to specifically include pulmonary edema, COPD, and asthmatic bronchitis, began during service or is due, at least due in part, to any incident of active duty, to include exposure to asbestos and/or other chemicals in-service? The examiner should comment on the effect of the Veteran's smoking and/or the Veteran's potential post-service exposure to asbestos, taking into account his employment history. 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. 5. To help avoid a future remand, the RO must ensure that all requested action have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. 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. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2009). _________________________________________________ CHERYL L. MASON 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).