Citation Nr: 1044089 Decision Date: 11/23/10 Archive Date: 12/01/10 DOCKET NO. 09-29 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to October 1956. He died in April 2008 This case comes before the Board of Veterans' Appeals (Board) from a rating decision of September 2008 from the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Board finds that remand is necessary to more fully develop the evidence in this matter and to address due process concerns. The appellant has alleged that the Veteran's service in the Navy resulted in asbestos exposure which caused the mesothelioma that led to his death. As to claims of service connection for asbestosis or other asbestos-related diseases (such as mesothelioma), 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 latest 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 United States Court of Appeals for Veterans Claims (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. The Veteran is noted to have served aboard 2 ships in the service, with a brief amount of time spent on the U.S.S. Henley in September 1953, but with the majority of his service time spent aboard the U.S.S. Strong, from December 1953 to September 1956. Ship information obtained about the U.S.S. Strong and associated with the claims folder shows that this ship was a World War II era ship and that it was overhauled at the Charleston Naval shipyard in 1953, during his active service. The RO did not consider such shipboard service in light of the above described provisions from the M21-1, which suggest that asbestos was used in the construction of World War II era ships. Instead, the RO simply determined in the July 2009 statement of the case that his military occupational specialty (MOS) of radarman was deemed to have a minimal likely exposure to asbestos, according to the Service Department. (see page 16 of Statement of the Case). A review of the records in the claims file to include the service personnel records did not reveal this statement from the Service Department as to the minimal exposure level for asbestos to be of record. VA's failure to allow the Veteran to review this evidence apparently from the Service Department as per the threat level of asbestos exposure for his MOS, which it relied upon in its decision, constituted a violation of the fair process principles set forth by the Court decision in Thurber v. Brown 5 Vet. App. 119 (1993). In addition the Board finds that further development is indicated to clarify all sources of the Veteran's claimed asbestos exposure. The Board notes that there is no evidence in the claims folder regarding any other possible sources of asbestos exposure, to include from any post service sources. The record contains no discussion of the Veteran's post-service employment, and the Board is unable to rule out the possibility that he had extensive exposure to asbestos in his post service career. Thus, the AOJ should contact the appellant and request that she provide information regarding the Veteran's post-service employment. She should be asked to identify the nature of the Veteran's employment after service and indicate whether or not she has reason to believe he was exposed to asbestos after service. She should be asked to provide any additional information pertinent to this matter, including information from other sources to include employment/workers compensation records or any records created in conjunction with possible asbestos-related litigation. 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) (2009). Expedited handling is requested.) 1. The AOJ should contact the appellant and request that she provide more information about the Veteran's claimed asbestos exposure during and after service. She should be asked to identify the nature of the Veteran's employment after service and indicate whether or not she has reason to believe he was exposed to asbestos after service. She should be asked to provide any additional information pertinent to this matter, including information from other sources to include employment/workers compensation records or any records created in conjunction with possible asbestos- related litigation. If indicated, and after obtaining necessary authorization, the AOJ should attempt to obtain records pertaining to such exposure from the all sources, to include any occupational/workers compensation records or any records pertaining to any possible litigation involving asbestos exposure. If the above-mentioned records are not available, that fact should be entered in the claims file. 2. The Veteran's long term service aboard a World War II era ship (U.S.S. Strong), as well as the short term service aboard the U.S.S. Henley should be considered 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 shipboard service caused asbestos exposure. If further investigation is necessary to make such a determination the AOJ 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 aboard the above described 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 AOJ should contact the United States Navy and/or the National Archives and request copies of the ship logs to help answer these questions. 3. If the AOJ continues to determine that in-service asbestos exposure is not shown in this case, it must provide to the Veteran a copy of the determination from the Service Department which it based its determination that asbestos exposure had not taken place, wherein the MOS of radarman was described as having a minimal potential for asbestos exposure. It should be clearly indicated in writing that the Veteran was given copies of this determination. Documentation thereof should be associated with the claims folder. 4. Thereafter, following any additional development deemed necessary (to include examination, if appropriate), the AOJ should consider all of the evidence of record and re- adjudicate the appellant's claim for service connection for the cause of the Veteran's death. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. 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). 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).