Citation Nr: 1113227 Decision Date: 04/04/11 Archive Date: 04/13/11 DOCKET NO. 04-43 699 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on a period of active guard reserve (AGR) training from June 1973 to October 1973 and on active duty from February 1980 to August 1985, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the RO. The Board remanded the issue on appeal in June 2010 for additional development of the record. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a video-conference hearing in October 2010. A transcript of the hearing is of record. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a left hand injury 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. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts are applicable to this appeal. The Veteran's military occupation was General Supplyman/Supply Clerk (76Y10). He reports his military duties involved handling and hauling brake shoes and other parts around Camp Robinson and contends that in the performance of his military duties he was exposed to asbestos. The Veteran testified in October 2010 that post service, he continued to work at Camp Robinson as a civilian federal employee performing identical duties as those performed during service, until his retired in 1991 (see transcript, page 16). In a December 2004 private treatment record, the impression, in pertinent part, was bilateral interstitial fibrosis consistent with asbestosis. In a January 2005 follow-up treatment record, doctor R.A.H. reported that "the work history provided to me indicates that [the Veteran] had an occupation exposure to various asbestos containing products from 1975 to 1991, while working at Camp Robinson as a warehouse worker and did all kinds of duties." The physician concluded that on the basis of the Veteran's history of occupational exposure to asbestos and objective examination, the Veteran had asbestosis. A March 2005 private pulmonary function test (PFT) showed diffusion defect consistent with a pulmonary vascular process. Anemia could not be excluded as a potential cause of the diffusion defect without correcting the observed diffusing capacity for hemoglobin. In a May 2005 private treatment record, C.L.J., M.D., concluded "based on [the Veteran's] industrial history, abnormal chest x-ray, and pulmonary function, I believe beyond a reasonable medical doubt that he does have evidence of asbestos related lung disease." A January 2008 VA PFT was terminated prematurely due to leg fatigue. Notwithstanding this evidence of a confirmed diagnosis of asbestosis, the Board notes that there are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, VA has provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1R (M21-1R), Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29. Additional guidance is found in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The VA General Counsel has held that these M21-1R guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Veterans Benefits Administration Manual M21-1R, Part IV, Subpart ii, Section C, Paragraph 9. It does not appear that the procedures outlined in The VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 have been followed concerning development of a claim involving asbestos. Consequently, additional development must be undertaken before the claim is ready for appellate review. If indicated, the Veteran should be afforded a VA examination to determine the etiology of his reported lung symptoms. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2009), the need for additional evidence regarding his claim. This letter should reflect all appropriate legal guidance. See e.g., Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The AMC/RO ensure that any notification action outlined by The VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 concerning asbestos are fully complied with and satisfied. 2. The Veteran is requested to provide a list of his employers prior to service, and following his separation from service, complete with the addresses, dates of employment, his job title and duties, and a list of all chemicals to which he was exposed during each period of employment. All attempts to procure records should be documented in the file. Once this information is received, the AMC/RO is to contact each employer and inquire as to the Veteran's job duties, in order to determine whether the duties involved exposure to asbestos. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Thereafter, the record should be reviewed and specific determinations provided as to whether the military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. 5. IF AND ONLY IF the AMC/RO determines that the Veteran had asbestos exposure, then the Veteran should be scheduled for a pulmonary examination at an appropriate VA medical facility. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician (preferably a pulmonary specialist, if possible) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies, to specifically include CT scan, should be accomplished, and all clinical findings should be reported in detail. Based on a review of the claims folder, examination of the Veteran, and employing sound medical principles, the physician is requested to opine whether it is at least as likely as not (50 percent probability or greater) that any lung disorder had its onset in service or is otherwise etiologically related to the Veteran's period of service. A complete rationale must be given for all opinions and conclusions expressed. The physician is specifically requested to determine the relationship between any claimed lung disease and any documented asbestos exposure, keeping in mind latency and exposure information provided in M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The physician should also address the Veteran's history of smoking and heart disease and the impact of such on the claimed lung disorder. 6. If scheduled, the Veteran must be given adequate notice of the date and place of any requested examination(s). A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 7. After completion of all indicated development, the Veteran's claim should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. 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. 2010). _________________________________________________ RENÉE M. PELLETIER 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).