Citation Nr: 1125726 Decision Date: 07/08/11 Archive Date: 07/15/11 DOCKET NO. 07-38 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for restrictive respiratory disorder (originally claimed as dyspnea and chronic obstructive pulmonary disorder), to include as due to inservice exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1956 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In that rating decision, the RO denied the claim for service connection for residuals of asbestos exposure and chronic obstructive pulmonary disorder (COPD). 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 a remand is necessary to develop the evidence in this matter and to address due process concerns. The Veteran asserts that his currently diagnosed restrictive respiratory disorder and breathing problems are related to his period of service. Specifically, he contends that they result from exposure to asbestos while he was stationed on board naval ships during his twenty plus years of active service. Although the Veteran does not have a current diagnosis of asbestosis, he is diagnosed with mild scarring on the bilateral upper lobes related to asbestos exposure. See September 2007 VA examination report, with a January 2008 addendum (the VA examiner ruled out a diagnosis of asbestosis, but she found that the diagnosed mild restrictive airway disease and scarring likely related to his asbestos exposure). VA has issued a circular on claims for service connection for asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The latest M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes high exposure to friable asbestos and a high prevalence of disease have been associated with insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because 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 Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21- 1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. The Veteran is noted to have served aboard eight ships during his naval service, of which four were World War II era ship (U.S.S. Heermann in 1957; U.S.S. James C. Owens from 1962 to 1963; U.S.S. Denebola from 1963 to 1964; and U.S.S. Tutuila from 1966 to 1967). It is unclear whether the RO considered such shipboard service in light of the above described provisions from the M21-1, which suggest that asbestos was used in the construction of World War II era ships. If the RO assumed the Veteran had a certain level of asbestos exposure based on his military occupational specialty (MOS) and the Navy's assessment of asbestos exposure for that MOS, then the Veteran should be provided copies of any information or evidence apparently from the Navy Department as per the threat level of asbestos exposure for his MOS, which it relied upon in its decision. In addition, the Board finds that further development is indicated to clarify all sources of the Veteran's claimed asbestos exposure. The Board notes that there is no evidence in the claims folder regarding any other possible sources of asbestos exposure, to include from any post service sources. The record contains no discussion of the Veteran's post-service employment, and the Board is unable to rule out the possibility that he had extensive exposure to asbestos in his post service career. The RO/AMC should contact the Veteran and request that he provide information regarding his post-service employment. He should be asked to identify the nature of his employment after service and indicate whether or not he has reason to believe he was exposed to asbestos after service. The Veteran should be asked to provide any additional information pertinent to this matter, including information from other sources to include employment/workers compensation records or any records created in conjunction with possible asbestos-related litigation. Finally, the Board notes that there is no evidence in the file discussing the Veteran's condition since 2008. After all of the requested development has been completed, and all pertinent information as to asbestos exposure during and after service is on file, the Veteran should be afforded another VA examination with the goal of identifying the Veteran's disorder(s) and obtaining a medical opinion as to the likelihood that any disorder diagnosed is related to service. Prior to any examination, an attempt should be made to obtain any outstanding records of pertinent medical treatment, particularly treatment since 2008. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran copies of any information or evidence (apparently from the Navy Department) used in the assessment of threat level of asbestos exposure for his MOS. 2. The RO/AMC should contact the Veteran and request that he provide more information about his claimed asbestos exposure during service and after service. The Veteran should be asked to identify instances in service where he may have had increased asbestos exposure. He should also be asked to identify the nature of any employment after service and indicate whether or not he has reason to believe he was exposed to asbestos after service. The Veteran should be asked to provide any additional information pertinent to this matter, including information from other sources to include employment/workers compensation records or any records created in conjunction with possible asbestos- related litigation. 3. With the Veteran's assistance, the RO/AMC should seek to obtain any outstanding records of pertinent VA or private treatment particularly that received since 2008. 4. The RO/AMC should consider the Veteran's term service aboard a World War II era ships (U.S.S. Heermann in 1957; U.S.S. James C. Owens from 1962 to 1963; U.S.S. Denebola from 1963 to 1964; and U.S.S. Tutuila from 1966 to 1967), in conjunction with the provisions of the VBA Manual M21-1, Part VI, pertaining to asbestos exposure, and make a determination as to whether it is as likely as not that the Veteran had asbestos exposure in the Navy. 5. If further investigation is necessary to make such a determination the RO/AMC should prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any information that might corroborate the Veteran's claimed in- service asbestos exposure from working aboard the above described ships. Copies of the Veteran's available service treatment records and service personnel records, and his contentions regarding exposure to asbestos should be forwarded to the JSRRC. If indicated by the JSRRC, the RO/AMC should contact the United States Navy and/or the National Archives and request copies of the ship logs to help answer these questions. 6. After all of the requested development has been completed, and all pertinent information as to asbestos exposure during and after service is on file, the Veteran should be afforded another VA examination with the goal of identifying the Veteran's breathing disorder(s) and obtaining a medical opinion as to the likelihood that any disorder diagnosed is related to service. 7. Thereafter, the agency of original jurisdiction should re-adjudicate the Veteran's claim. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. 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. 2009). _________________________________________________ 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) (2009).