Citation Nr: 1110183 Decision Date: 03/15/11 Archive Date: 03/30/11 DOCKET NO. 08-15 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a lung disorder claimed as chronic obstructive pulmonary disease (COPD) to include as due to asbestos exposure. 2. Entitlement to service connection for a cervical spine disorder to include as secondary to a service connected lumbar spine disorder. 3. Entitlement to a rating in excess of 20 percent disabling for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision of February 2006 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in Huntington, West Virginia, which denied the claims on appeal. 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 it is necessary to remand all the appellate issues for further development. In regards to the lung disorder, claimed as due to asbestos exposure, the Veteran has alleged that he has COPD as a result of in-service asbestos exposure, which he states took place when he worked as a mechanic and changed the brake pads of vehicles. He is shown to have been a wheel vehicle mechanic in his service personnel records, with his MOS listed as wheeled vehicle repairman in his DD-214. He also indicated that he worked for 25 years after service as a coal miner. The VA records also show that he had been a smoker who quit 2 months prior to June 2005. 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. 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. 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. Thus, development and adjudication of this matter should be in accordance with the appropriate criteria, including that set forth in the above guidelines, and in light of his MOS having been shown to have been a mechanic in service, which strongly suggests likely in-service exposure through the servicing of brakes, See M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b., a VA medical examination should be scheduled to ascertain whether he is suffering from a lung disorder related to his asbestos exposure. VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2010). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. See also Locklear v. Nicholson, 20 Vet. App. 410 (2006). In light of the claim for the lung disorder alleged to be related to asbestos exposure, and in light of the evidence showing varied differential diagnoses on the June 27, 2005 CT scan and thoracic consult, 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. In regards to the cervical spine claim, the Board notes that the Veteran clearly articulated that he wished to claim service connection for "arthritis of the neck" on a secondary basis "to my service connected conditions" in a letter received by the RO in June 2005. At the time he submitted this, his lumbar spine condition was the lone service connected disability. In spite of this claim, the RO is noted to have denied his claim for the cervical spine on a direct basis only, and has not commenced any development of this matter (beyond the issuance of a duty to assist letter in June 2005) to afford adjudication on a secondary basis. VA examinations of the lumbar spine in March 2004 and December 2005 fail to sufficiently address the issue regarding service connection of the cervical spine as secondary to the lumbar spine. The Veteran's representative in a January 2011 brief reiterated that the problems of pain and arthritis of his neck was secondary to his service connected back disorder. The Court has held that service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). Thus, this matter must be remanded to afford proper development and examination, as well as adjudication of this matter under the appropriate criteria. In regards to the lumbar spine claim, the Board notes that the most recent VA examination addressing lumbar spine problems was performed back in December 2005, approximately five years ago. In brief, the fulfillment of the VA's statutory duty to assist the appellant includes providing additional VA examination by a specialist when indicated, and conducting a thorough and contemporaneous medical examination, and providing a medical opinion, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In addition, the most recent records of treatment are also from 2005. In light of the need to remand this matter for further development, an opportunity to obtain more recent records should be given. This includes obtaining records in conjunction with a claim for workers compensation following an accident in 2000 when a slab of rock from the mine apparently fell on his shoulders and injured him. Finally, there is also mention of the Veteran having been on Social Security disability since 2002, as mentioned in the December 2005 VA examination report. To date, no such records have been obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain from the Social Security Administration a copy of any decision that was made on a claim for Social Security disability benefits awarded, as well as the medical records relied upon concerning any determination rendered. All efforts to obtain these records should be fully documented, and the Social Security Administration should provide a negative response if records are not available. 2. The AOJ should contact the Veteran to determine the names, addresses, and dates of treatments of any and all VA and private medical care providers, who treated him for his back disorder, neck disorder and pulmonary disorder since 2005, to include any records pertaining to incapacitating episodes from the back disorder within the past 12 months. He should also be asked to provide names, addresses, and dates of treatments of any and all medical care providers, who treated him following his work injury in 2000 due to a rock collapse in the mine. After securing the necessary release(s), the AOJ should obtain these records. All correspondence, as well as any treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the Veteran and his representative should be provided with information concerning the negative results and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (2010). 3. After completion of the above, the Veteran should be scheduled for VA orthopedic and neurological examinations to determine the nature and severity of his service-connected lumbar spine disorder and in the orthopedic examination, to also determine the nature and etiology of his claimed cervical spine disorder. All indicated tests and studies should be undertaken, to include X-ray. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination, and the examination report must be annotated in this regard. After a review of the claims file, it is requested that the examiner provide explicit responses to the following: (a) The orthopedic examiner should address the severity of the Veteran's service-connected lumbar spine disorder by recording the range of motion in the Veteran's back observed on clinical evaluation and should assess whether the back exhibits any disability to include limitation of motion, pain, or instability, including on repetitive use. Additionally, the examiner should be requested to determine whether the lumbar spine exhibits weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. The orthopedic examiner should also be asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or on use. The examiner should also identify whether or not the Veteran reported any incapacitating episodes associated with his back pain, and if so, the duration of such episodes. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The examiner should provide reasons and bases based on medical judgment and facts for this opinion. (b) The orthopedic examiner should address the nature and etiology of the cervical spine disorder by answering the following questions. (i) Does the Veteran have any current, chronic disability of the cervical spine? If so, is it at least as likely as not (i.e., at least a 50/50 probability) that any such disability or disabilities began in service or was the result of any incident in service? (ii) If any disabilities of the cervical spine did not begin in service and were not caused by active service, the examiner should provide an opinion as to whether is it at least as likely as not (i.e., at least a 50/50 probability) that any such disability is being caused or aggravated by the Veteran's service connected lumbar spine disability. Each opinion should contain comprehensive rationale based on sound medical principles and facts. (c) The neurological examiner should describe the severity of all neurologic impairment, if any, related to the service-connected lumbar spine disorder. The neurological examiner should also discuss the severity of any associated radiculopathy which may be found and ascertain whether it more closely resembles a mild incomplete paralysis, a moderate incomplete paralysis, a moderately severe incomplete paralysis or a severe incomplete paralysis. The examiner should also describe any other neurological manifestations which may be present. The examiner should provide reasons and bases based on medical judgment and facts for this opinion. 4. 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 via his MOS as a mechanic changing brake shoes and his post service pulmonary history (including working 25 years in a coal mine), 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. 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 factors affecting his lungs. 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 of service. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. 5. The AOJ should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reports of examinations. If the requested reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2010); see also Stegall v. West, 11 Vet. App. 268 (1998). 6. Thereafter, the AOJ should readjudicate the Veteran's claims for an increased rating and for service connection. Adjudication of the cervical spine claim should consider the applicability of 38 C.F.R. § 3.310(a) (2010) and Allen v. Brown, 7 Vet. App. 439, 448 (1995). If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. 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 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). _________________________________________________ MICHAEL MARTIN Acting 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).