Citation Nr: 1219551 Decision Date: 06/04/12 Archive Date: 06/13/12 DOCKET NO. 09-23 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disorder to include lung cancer, as residuals of exposure to asbestos. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1963 to December 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The appellant alleges that he has a respiratory disorder which was incurred in service to include due to in-service asbestos exposure. Specifically, he states that he was exposed to asbestos while he was stationed in Germany from November 1963 to September 1964, and that he was in radio communications and worked in huts which were insulated with material filled 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 record shows that the Veteran was stationed overseas with the 84th Artillery in November 1963 and worked as a radio operator. He has further stated during his August 2011 VA examination that he was exposed to asbestos during basic training at Fort Gordon in 1963, and that he was in Booseback Germany where he spent time in a dungeon, and was exposed to stone dust. He has also claimed that he spent 22 to 24 days in the bottom of a ship and was exposed to asbestos. The Board finds 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 huts where the Veteran was stationed in Germany. The RO merely attempted to confirm such exposure by obtaining the service personnel records. Therefore, additional attempts must be undertaken to confirm his claimed exposure, to include contacting 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 Mark 69 huts in Germany at the times and places he reported having contact with such facilities included asbestos, should the search via POPM fail to provide adequate information. The Board notes that 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 appropriate 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. 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, 52 (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. In this case, the Veteran was treated in service for cough with specks of blood in the sputum in December 1963 and for a constant cough in June 1964. The appellant's post service treatment records reflect a diagnosis for bronchitis/pneumonia after discharge from service on VA examination in August 2011, with a finding that the diagnosis is most likely caused by or the result of "various exposures" the Veteran was exposed to in the military. Additional development should be undertaken to verify whether the appellant was exposed to asbestos in service and if his current lung disorder is related to service, including the inservice treatment and/or exposure to asbestos or dust. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2011). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide complete information regarding his claimed exposure to asbestos during basic training at Fort Gordon in 1963, in Booseback Germany where he spent time in a dungeon, and when he spent 22 to 24 days in the bottom of a ship. The RO should also inquire as to the Veteran's history of exposure to asbestos after service. Allow the appropriate amount of time for the Veteran to respond. 2. Then 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 huts 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. 3. The RO/AMC must determine whether military records (including his location of service and military occupational specialty as indicated on his DD Form 214) demonstrate evidence of asbestos exposure during service, develop whether 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 lung disease, with consideration of the latency and exposure information discussed in the body of this remand, above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). All efforts to obtain these records should be fully documented, and the RO/AMC should request a negative response if records are not available. 4. Then the appellant should be scheduled for a VA respiratory examination to determine whether he has a current respiratory or pulmonary disorder due to exposure to asbestos or dust in service or that is related to his inservice treatment for respiratory complaints. The examiner should review the claims folder prior to examination. If exposure to asbestos is confirmed by the RO, the examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current lung disorder is related to exposure to asbestos in service. The examiner should discuss the appellant's service as well as his post-service history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders. If exposure to asbestos is not found by the RO the examiner should opine whether it is at least as likely as not less likely than not, or at least as likely as not, that any current lung disorder is related to the Veteran's inservice treatment for respiratory complaints. Complete rationale must be provided. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to it being the result of some other factor or factors. 5. The RO 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 report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2011); See also Stegall v. West, 11 Vet. App. 268 (1998). 6. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issues remain denied, the appellant and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 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. 2011). _________________________________________________ F. JUDGE FLOWERS 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) (2011).