Citation Nr: 1124691 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 06-13 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a chronic respiratory disability. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for a chronic skin disability. 4. Entitlement to service connection for a chronic gastrointestinal disability (previously claimed as an appendix infection). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from November 1958 to September 1959. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in April 2009. This matter was originally on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. The issue of entitlement to service connection for a cardiac disability 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 Board notes that the Veteran claims that he was exposed to asbestos while working as a vehicle mechanic during service and that this exposure could have lead to his current health issues. As regards asbestos exposure, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, 4 Vet. App. 428, 432 (1993), the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. 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), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes 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. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). 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 sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). 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 id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. Review of the record does not show that this appeal, specifically with respect to his claim of asbestos exposure, has been properly developed. Accordingly, the case is REMANDED for the following action: 1. Appropriate action should be taken to develop the claim in accordance with Adjudication Procedure Manual, M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C. 2. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for any respiratory, skin, or stomach disorder that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 3. After the above is completed, the Veteran should be afforded the appropriate VA examination by a physician to determine the etiology of his current respiratory, skin, and gastrointestinal disorders. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The physician should identify all current, chronic respiratory, skin, and gastrointestinal diagnoses and provide an opinion as to whether it is at least as likely as not that any such diagnosis is related to the symptoms documented during the Veteran's active duty service or to claimed asbestos exposure, or is otherwise related to active service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). _________________________________________________ MILO H. HAWLEY 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).