Citation Nr: 1305362	
Decision Date: 02/13/13    Archive Date: 02/21/13

DOCKET NO.  08-38 722	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for asbestosis.

2.  Entitlement to service connection for a respiratory disorder other than asbestosis.  

3.  Entitlement to service connection for diabetes mellitus, type II.  

4.  Entitlement to service connection for obstructive sleep apnea.  

5.  Entitlement to service connection for a vision disorder.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission



WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

W. Yates, Counsel


INTRODUCTION

The Veteran served on active duty from March 1957 to March 1959.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In August 2011, a Travel Board hearing was conducted at the RO before the undersigned Acting Veterans Law Judge; a transcript of the hearing has been associated with the claims file.

In January 2012, the Board granted service connection for tinnitus and remanded the remaining claims to the agency of original jurisdiction (AOJ) for additional evidentiary development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Board's decision below grants entitlement to service connection for asbestosis.  As this does not resolve the Veteran's claim concerning other respiratory disorders, it has been added as a separate issue on appeal.

The issues of entitlement to service connection for a respiratory disorder other than asbestosis; diabetes mellitus, type II; obstructive sleep apnea; and a vision disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

The Veteran is currently diagnosed with asbestosis, which has been linked by competent medical opinion to his in-service asbestos exposure. 


CONCLUSION OF LAW

The criteria for service connection for asbestosis have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012).  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases.  However, VA's Adjudication Procedure Manual addresses asbestos-related compensation claims.  See M21-1MR, Part IV, Subpart ii, ch. 1, sec. H.29 (2013), entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, ch. 2, sec. C.9 (2013), 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.  M21-1MR, Part IV, Subpart ii, ch. 1, sec. H.29.a.

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 manufacturing and servicing of friction products such as clutch facings and brake linings, and other occupations.  The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, ch. 2, sec. C.9.a-f.

The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service, and 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.  M21-1MR, Part IV, Subpart ii, ch. 2, sec. C.9.h.  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.

The Veteran contends that he was exposed to asbestos in service and that asbestos fibers caused him to develop respiratory disorders, including asbestosis.  

Despite the RO having taken all reasonable actions, the Veteran's service treatment records are not available for review in this case.  It has been reported that these records may have been destroyed by a fire that occurred at the National Personnel Records Center in St. Louis, Missouri.

In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The analysis below has been undertaken with this heightened duty in mind.  The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant.  See Russo v. Brown, 9 Vet. App. 46 (1996).

The Veteran served on active duty in the Army from March 1957 to March 1959.  His report of separation, Form DD 214, listed his in-service specialty as a truck vehicle mechanic.  The Veteran testified and submitted statements indicating that he was frequently involved with changing brakes during his military service.  Lay statements were also received from fellow service members, R.V. and R.S., indicating that the Veteran was exposed to brake dusts while doing vehicle repair work during his military service.  Thus, as noted by the RO, exposure to asbestos can be conceded.  

A review of the Veteran's post-service treatment records revealed diagnoses of chronic obstructive pulmonary disease (COPD) and asbestosis.  An August 2006 private treatment report noted x-ray examination findings of increased interstitial markings diffusely with old calcified granuloma scattered throughout both lung fields.  A November 2011 CT scan of the chest revealed an impression of bilateral pleural plaques and calcified pleural plaques consistent with prior asbestos exposure.  

A December 2012 VA examination was conducted pursuant to the Board's January 2012 remand.  Current diagnoses of COPD and asbestosis were provided.  The examination report also noted the VA examiner's opinion that it was at least as likely as not that the Veteran's asbestosis was incurred in or caused by the Veteran's military service.  In support of this opinion, the VA examiner stated that the Veteran had been evaluated by a pulmonary specialist in December 2011, and was diagnosed with nonspecific intrathoracic lung related to asbestos exposure in 1950.  The VA examiner also noted the findings on the Veteran's November 2011 CT scan, and indicated that he was likely exposed to asbestos during his military service.

It is notable that the Veteran's diagnosis falls into the latency period following service for asbestos-related diseases.  Moreover, post-service exposure to asbestos has not been established.  An August 2006 treatment report noted that the Veteran had worked as a fisherman and woodworker.

Thus, in consideration of the foregoing, the Board resolves reasonable doubt in the Veteran's favor in finding that his currently diagnosed asbestosis is related to asbestos exposure during his period of active military service.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  Therefore, service connection for asbestosis is warranted.  See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304.


ORDER

Service connection for asbestosis is granted.


REMAND

The Veteran is seeking entitlement to service connection for a respiratory disorder; 
diabetes mellitus, type II; obstructive sleep apnea; and for a vision disorder.  The Board finds that a remand is required for compliance with VA's duty to assist the Veteran in substantiating these claims remaining on appeal.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

Pursuant to the Board's January 2012 remand, the AOJ was to obtain a medical opinion as to whether any diagnosed respiratory pathology was related to the Veteran's military service; and if so, whether such disability caused or aggravated the Veteran's sleep apnea or a vision disorder.  

The December 2012 VA examination included diagnoses of COPD and asbestosis.  The VA examiner failed, however, to address etiology of the Veteran's COPD; and failed to consider whether the Veteran's asbestosis caused or aggravated the Veteran's sleep apnea or a vision disorder.  Under these circumstances, the RO must obtain a supplemental medical opinion addressing these issues.  See Stegall v. West, 11 Vet. App. 268 (1998); Barr, 21 Vet. App. at 311 (if VA provides the Veteran with an examination or opinion in a service connection claim, the examination must be adequate).

Additionally, as noted in the Board's January 2012 remand, the Veteran alleges that he was exposed to herbicides during his military service at Fort Chaffee, Arkansas and Fort Knox, Kentucky.  Pursuant to this allegation, the AOJ was directed to request that the Veteran provide information concerning his alleged herbicide exposure, and attempt to verify this exposure, if necessary, through the Compensation and Pension (C&P) Services.  See M21-1MR, Part IV, Subpart ii, 2.C.10.n.  A February 2012 development letter from the AMC only addresses the Veteran exposure to asbestos and does not reference the Veteran's alleged in-service exposure to herbicides.  Accordingly, the RO must complete the development previously requested concerning this issue.  See Stegall, 11 Vet. App. at 268.

It appears that the Veteran receives regular treatment at the VA Medical Center (VAMC) in Temple, Texas.  Updated treatment records should be obtained in light of the remand.

Accordingly, these issues are REMANDED for the following actions:

1.  Request that the Veteran provide information as to the approximate dates (i.e., within a 60-day period), location, and nature of his alleged herbicide exposure.  If the necessary information is provided, submit a request to C&P Services via email, furnishing the Veteran's detailed description of herbicide exposure and requesting a review of the DOD's inventory of herbicide operations to determine whether herbicides were used as alleged by the Veteran.  If it is determined that herbicides were used, the name of the chemical compound utilized should be obtained if possible.

2.  Obtain the Veteran's more recent treatment records (since December 2012) from the Temple VAMC and associate the records with the claims folder.

3.  Thereafter, the Veteran's entire claims folder, including this remand, and any pertinent records contained in Virtual VA which are not in the claims file, must be reviewed by the VA examiner who conducted the December 2012 VA examination for respiratory conditions.  If the prior VA examiner is not available, the foregoing documents should be provided to another appropriate examiner.  Based upon a review of this information, the examiner must express an opinion as to the following:
 
(a) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current COPD was incurred or aggravated by his military service, including in-service exposure to any hazardous substance, including but not limited to asbestos.   

If not, whether the Veteran's COPD was caused or aggravated (i.e., increased in severity beyond the natural progress of the condition) by his service-connected asbestosis.

If either of the above have been answered in the positive, an opinion should be provided as to 
whether it is at least as likely as not (50 percent or better probability) that the COPD caused or aggravated (i.e., increased in severity beyond the natural progress of the condition) the Veteran's sleep apnea or a vision disorder. 

(b) whether it is at least as likely as not (50 percent or better probability) that the Veteran's asbestosis caused or aggravated (i.e., increased in severity beyond the natural progress of the condition) the Veteran's sleep apnea or a vision disorder. 

A complete rationale must be provided for all opinions expressed.  If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

Whether a new examination is necessary to answer the questions is left to the discretion of the examiner.

4.  After the requested examination report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand.  If a report is deficient in any manner, it should be returned to the examiner for corrective action.

5.  Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues remaining on appeal.  If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the 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 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. 2012).



______________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs