Citation Nr: 1109337 Decision Date: 03/09/11 Archive Date: 03/17/11 DOCKET NO. 07-37 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lung disorder, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Attorney Deanne L. Bonner WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision prepared by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, for the Detroit, Michigan, RO. The RO, in pertinent part, denied the benefits sought on appeal. The Veteran testified before the undersigned Veterans Law Judge at a hearing held in April 2008 at the Central Office. A copy of the transcript is of record. Following a remand in August 2008, the Board denied this claim in September 2009. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In September 2010, the Court granted a Joint Motion for Remand. This matter is now returned to the Board to further address. 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 of this matter is necessary to afford compliance with due process and developmental issues raised by the Joint Motion. The veteran contends that his exposure to asbestos occurred while stationed in Korea and at Fort Hunter-Liggett in California where he lived in Quonset huts insulated with asbestos and performed duties as an ammunition specialist going in and out of ammunition bunkers also insulated with asbestos. He does not allege, nor does the evidence show that he had an occupation during service with higher incidents of asbestos exposure. The Board also notes that the veteran testified that his post-service employment included working for the City of Detroit wiring apartments. See Board Transcript at 25. The evidence also shows the veteran smoked for 40 years, but recently stopped. The September 2010 Joint Motion found that the Board decision of September 2009 had violated Stegall v. West 11 Vet. App. 268, 271 (1998), by failing to comply with its own remand instructions of August 2008. Specifically, the Joint Motion found that attempts to confirm the Veteran's claimed asbestos exposure were inadequate, as the RO did not take all appropriate action to develop evidence regarding asbestos exposure, to specifically include seeking information as to whether asbestos was in Quonset huts or ammunition bunkers. The RO merely attempted to confirm such exposure by contacting the NPRC, which replied that such information was not a matter of record. This single request was deemed inadequate by the Joint Motion. Therefore, additional attempts must be undertaken to confirm his claimed exposure to include from the source suggested by the Joint Motion, specifically the Proponency Office for Preventative Medicine (POPM) in San Antonio, Texas. Further development should include contacting the United States Army and Joint Services Records Research Center (JSRRC) to determine whether materials used in Quonset huts or ammunition bunkers contained asbestos at the times and places he reported having contact with such facilities, should the search via POPM fail to provide adequate information. The Joint Motion also took issue with the Board's failure to address whether the findings from a June 2008 CT scan, which reveal diffuse interstitial pulmonary fibrosis, establish a diagnosis of asbestosis. Such a finding was said in the Joint Motion to be suggested by the M21-1 MR to be consistent with that of asbestosis. The parties in the Joint Motion cited to M21-1MR Part IV, Subpart ii, Chapter 2 Sec C, Paragraph 9a-f. While the Board does not read the cited provision of M21 to mean that any diagnosis of interstitial fibrosis is a diagnosis of asbestosis, the guidance of a medical professional is beneficial in this situation. Further examination is indicated to determine whether or not the Veteran actually has a lung disorder, including an asbestos related disorder, that is due to some aspect of service. In addition it was noted that additional evidence was submitted in January 2011 after the Joint Motion was issued, thus further examination should include consideration of such evidence. Given the complexity of this Veteran's particular case, care should be taken to ensure that the appropriate tests are undertaken and the results reviewed by an examiner with the requisite expertise to render an opinion regarding the proper diagnosis and etiology of the Veteran's lung pathology, in accordance with the appropriate VA criteria for addressing such claims. Such examination and review should include examination of this Veteran and review of the claims file by a physician who is a certified "B reader." As a matter of background information, B reader approval is granted to physicians with a valid U.S. state medical license who demonstrate proficiency (via examination) in the classification of chest radiographs for pneumoconioses using the International Labor Office Classification System. It is also used to classify chest radiographs of asbestos- exposed workers governed by the U.S. Department of Labor regulations, and for medical screening, surveillance, research, or compensation programs. See National Institute for Occupational Safety and Health (NIOSH) Website on Safety and Health Topic: Chest Radiography. As was noted in the previous remand of August 2008, there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos- Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Thus adjudication of this matter should be in accordance with the appropriate criteria, including that set forth in the above guidelines. Accordingly, the case is REMANDED for the following action: 1. The RO should take all appropriate action to develop evidence regarding the veteran's asbestos exposure before, during, and after his active service, to specifically include seeking information as to whether any Quonset huts and ammunition bunkers at the Headquarters Company, Second Battalion, Fourth and Seventh Cavalry Divisions in Korea during the period from February 1963 and February 1964 and at Fort Hunter- Ligget in California from March 1964 to July 1965 were constructed of materials containing asbestos. This should include contacting the Proponency Office for Preventative Medicine (POPM) in San Antonio, Texas. Should the search through POPM fail to disclose adequate information, the RO should contact the JSRRC to provide any information that might corroborate the veteran's claimed in-service asbestos exposure. The RO should also inquire as to the Veteran's history of exposure to asbestos after service - to include while he worked re-wiring buildings for the City of Detroit. 2. The veteran should then be afforded a VA examination by a pulmonary specialist, who is a certified "B Reader" under NIOSH to determine the current nature and likely etiology of his lung disease. The claims folder must be made available for review by the examiner in conjunction with the examination. Any indicated studies should be conducted, to include both CT scan and chest X-rays. The examination should also include obtaining a history from the Veteran of his history of asbestos exposure to include during service and post service (working with electrical wiring), as well as his smoking history. Based on the examination, review of the record, and a detailed reading of scan and test results, the examiner should provide a medical opinion as to whether or not the veteran has asbestosis, or any other lung disability due to asbestos exposure, and to provide a definitive diagnosis of the lung disability. The examiner should also identify any non-asbestos related lung disorder found. The examiner in providing this opinion should address the conflicting medical evidence and opinions currently of record, and provide precise reasoning to support his or her opinion that the lung disability is either asbestos related or is not asbestos related. If it is found that the veteran does have asbestos-related disability, the examiner should further opine whether such disability is, at least as likely as not (50% or greater), related to asbestos exposure in service. The examiner should specifically comment upon the role of any pre or post-service asbestos exposure. The examiner must explain the rationale for all opinions given. If the Veteran is diagnosed with a lung disorder that is not related to asbestos exposure, the examiner should comment as to whether such disability is otherwise at least as likely as not (50% or greater), related to some aspect of the Veteran's period service. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. 3. Following completion of the above development, the AOJ should readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC), which reflects consideration of all additional evidence received. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the Veteran's claim. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2010). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. 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). _________________________________________________ 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) (2010).