Citation Nr: 1107042 Decision Date: 02/22/11 Archive Date: 03/04/11 DOCKET NO. 09-37 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lung disorder (claimed as mesothelioma), to include as secondary to in-service asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to April 1964. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied service connection for mesothelioma due to asbestos exposure. In June 2010, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. The RO originally adjudicated the Veteran's claim as entitlement to service connection mesothelioma in the January 2009 rating decision. However, at this time, the exact diagnosis of the Veteran's lung condition remains unclear. Therefore, the issue is recharacterized as shown on the first page of this decision and it is acknowledged that such description includes a claim of entitlement to service connection for all currently diagnosed lung conditions, including, but not limited to mesothelioma. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In September 2008, the Veteran called VA and indicated that he wished to file a claim for nonservice-connected pension benefits. This matter is not currently developed or certified for appellate review. Accordingly, it is referred to the RO 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. REMAND The Veteran asserts that he incurred a lung disorder as a result of in-service asbestos exposure aboard the USS Brownson. Additionally, the record reflects that the Veteran served as a boilerman, an MOS that is more likely to be exposed to asbestos products. It is therefore conceded that the Veteran was exposed to asbestos during service. VA treatment records from September 2008 indicate that the Veteran has some type of lung disorder, although an exact diagnosis is not altogether clear. A chest x-ray revealed bilateral calcified pleural plaques consistent with previous asbestos exposure and mild emphysematous changes. Pulmonary function tests indicate small airway obstruction with a normal DLCO. A computerized tomography (CT) scan and history are consistent with asbestos exposure. Furthermore, the Veteran reports occasional shortness of breath and the use of albuterol. At the Veteran's video conference in June 2010, he testified that he had no post-service exposure to asbestos and he never smoked. Thus, it appears that the Veteran was exposed to asbestos during service, with no history of post-service exposure, and there is objective radiological medical evidence of asbestos exposure. Although the Veteran's claims of shortness of breath and the use of albuterol are noted in the file, there is no evidence in the claims file showing a diagnosis of a current disability. That is not to say that one doesn't exist; however, a current diagnosis of a lung disorder is not presently contained in the claims file. A claim for service connection requires medical evidence showing that the Veteran currently has the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. Under 38 U.S.C.A. § 1110, it is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Absent proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). There has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos- related diseases, nor has VA promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The Board notes that the DVB circular was subsumed verbatim as § 7.21 of VA Manual ADMIN21 (M21-1). Subsequently, VA has reorganized and revised this manual into its current electronic form M21-1MR. While the form has been revised, the information contained therein has remained the same. "Asbestosis is a pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 429 (1993). Another similar definition of pneumoconiosis is "a condition characterized by permanent deposition of substantial amounts of particulate matter in the lungs, usually of occupational or environmental origin." Dorland's Illustrated Medical Dictionary, 1315 (28th ed., 1994). With asbestos related claims, VA must determine whether military records demonstrate asbestos exposure during service, and if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(h). VA must also ensure that proper development of the evidence is accomplished to determine whether or not there is pre-service and/or post- service asbestos exposure. Id. The most common disease caused by exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(b). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part VI, Subpart ii, Chapter 2(C)(9)(e). Some of the major occupations involving exposure to asbestos include 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21- 1, Part VI, Subpart ii, Chapter 2, §C(9)(f). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos- related claim. See VAOPGCPREC 4-2000. In light of the foregoing, the Veteran must be examined to determine whether he currently suffers from a lung disability in light of his in-service asbestos exposure. Since the claims file is being returned it should be updated to include any recent VA treatment records since September 2008 that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder VA records dating from September 2008 that pertain to the Veteran. If there are none, this should be documented in the claims folder. 2. Schedule the Veteran for a VA examination to determine the current and likely etiology of any lung disorder, including, but not limited to mesothelioma. The claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. The examiner should specifically describe from which lung disorders the Veteran suffers, and opine as to whether they are at least as likely as not (at least a 50 percent or higher probability) related to the Veteran's service, to include in-service asbestos exposure. Based on the available literature and the Veteran's MOS, as well as the medical evidence currently of record, it is conceded that the Veteran was exposed to significant levels of asbestos aboard the USS Brownson, a World War II ear destroyer, during service in the 1960s. A complete rationale for all opinions must be provided. 3. Ensure that the above development has been completed in accordance with the directives. If the examination report is insufficient, it should be returned to the examiner. Following completion of the development requested, readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period to respond before the case is returned to the Board. 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. 2010). _________________________________________________ S. S. TOTH 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) (2010).