Citation Nr: 1306335 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-42 287 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic asthma with chronic obstructive pulmonary disorder (COPD), claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to August 1957. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO denied service connection for chronic asthma with COPD. In May 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. In the October 2009 substantive appeal, the Veteran had requested a Board hearing to be held at his local VA RO. In June 2012, the Veteran elected to withdraw that hearing request in a written statement which is of record. A February 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In February 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For reasons expressed below, the claim on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Additional development is required in conjunction with the Veteran's service connection claim for chronic asthma with COPD. Although the Board sincerely regrets the 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. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). On his original claim form filed in October 2008, the Veteran indicated that he was exposed to tear gas as part of gas mask training in Fort Ord, California. He also stated that he was treated at a hospital at in Fort Ord, California in November 1956. Private medical evidence reveals that COPD was assessed based on chest X-ray films of January 2008. VA records dated in 2008 and 2009 note a history of asthma and reflect that the Veteran was being treated for conditions including COPD. In a statement dated in November 2008, the Veteran expressed his belief that he was exposed to asbestos at Fort Ord, California and at Fort Carson, Colorado. He indicated that he had served as an infantry rifleman and also noted that he had served on reserve duty in Virginia. On a March 2009 Questionnaire About Military Service, the Veteran indicated that he had reserve service from August 1957 until September 1962. In a November 2009 statement, the Veteran indicated that he felt that he was exposed to asbestos while serving in the Army Reserves. He also reported that in approximately 2005 or 2006, he had been treated for and diagnosed with for asthma and asbestos exposure at Northern Hospital in Mount Airy, North Carolina. The Veteran stated that he believed that buildings in the military were constructed with asbestos and that asbestos was in the barracks. The file contains a private medical statement of Dr. M.M, dated in January 2009, indicating that the Veteran had severe chronic obstructive pulmonary disease, confirmed by pulmonary function testing, which also revealed mild restrictive ventilatory defect. Dr. M.M. noted that this was related to asbestos that the Veteran was exposed to during service. In a brief dated in January 2013, the Veteran's representative argued that it is conceivable that asbestos exposure in service played a part in the Veteran's COPD, citing to several websites containing potentially pertinent information. Complicating this case is the fact that the Veteran's STRs in this case are entirely unavailable and are presumed to have been destroyed in a fire at the National Personnel Records Center. The Veteran was formally advised of this fact in March 2009. In a case such as this where it appears that STRs are incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of- the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out, however, the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the claim. In this regard, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). The VA Adjudication Procedure Manual Rewrite (M21-1MR) provides that VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop the claim to find out whether there was pre-service and/or post-service occupational and other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. For many asbestos related diseases the latency period varies from ten to forty-five or more years between first exposure and development of disease. Id. at IV.ii.2.C.9.d. Such development has not been undertaken in this case, and will be requested by virtue of this Remand to the extent possible, given the limitations on available evidence. The Board notes that neither the VBA Manual nor the Circular creates a presumption of exposure to asbestos. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure to asbestos and the prevalence of disease found in insulation and shipyard workers 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 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2012). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, COPD has been diagnosed and a history of asthma is noted. In addition, the January 2009 private medical opinion indicates that COPD may be linked to asbestos exposure in service. However, that opinion does not provide a sufficient basis to decide the claim because the no supporting information or rationale for that opinion was provided. Under these circumstances, the Board finds that the medical evidence currently of record is inadequate to resolve the claim on appeal, and that additional medical examination and opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly stated rationale-is needed to resolve the claim. Id.; see also 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. Hence, the RO should arrange for the Veteran to undergo VA pulmonary/respiratory examination, by an appropriate physician, at a VA medical facility, to obtain information as to the nature and etiology of all current lung disabilities, including COPD and asthma. In conjunction with the examination, the website information identified by the Veteran's representative in the 2013 brief should be printed and associated with the record, as well as provided for the examiner for review and consideration, as well as being reviewed by the RO as part of the record on readjudication. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim for service connection. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of the notice of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate obtain and associate with the claims file all outstanding, pertinent records. Initially, the Board notes that is no indication that the Veteran's reserve records for the period extending from August 1957 to September 1962 have ever been sought as discussed in the Veteran's October 2009 statement. Also noted in that statement were 2005 and 2006 treatment records from the Northern Hospital in Mount Airy, North Carolina. While records from that facility dated from January 2007 to May 2008 are on file, it is not clear if the Veteran's full record of treatment has been obtained from that facility. Accordingly, all of the Veteran's treatment records from the Northern Hospital in Mount Airy, North Carolina, should be sought. As for VA records, the claims file reflects that the Veteran has been receiving treatment for COPD and possibly asthma at the VA Medical Center (VAMC) in Salisbury, North Carolina, and the claims file contains treatment records from this facility dated up to January 29, 2009. Hence, it appears that more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the RO should obtain from the above-cited facility all outstanding, pertinent VA records of evaluation and/or treatment of the Veteran from February 2009, forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all available records of the treatment, evaluation and hospitalization of the Veteran from Northern Hospital in Mount Airy, North Carolina. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO should conduct a search for the Veteran's DD214 Form and for Army reserve records dated from August 1957 to September 1962. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file, with annotations regarding unavailable records. 2. The RO should obtain from the Salisbury VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from February 2009, forward. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should specifically request that that the Veteran furnish, or furnish appropriate authorization for the RO to obtain all available records of the treatment, evaluation and hospitalization of the Veteran from Northern Hospital in Mount Airy, North Carolina. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified-to include records from Northern Hospital-following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. The RO should undertake appropriate action to develop evidence of the Veteran's claimed asbestos exposure before, during, and after service (to include during his reserve service)-consistent with VBA Manual guidelines and Dyment v. West, 13 Vet. App. 141 (1999). Such should specifically include seeking information as to whether the Veteran's service-related job duties, assignments or living situation involved being in the vicinity of or working with or near asbestos. After completion of the above, the RO should make a determination for the record regarding the extent to which such factors may have resulted in his exposure to asbestos. 6. The RO is requested to add to the record information contained from the websites mentioned in the brief dated in January 2013. Should any such information be unavailable, that fact should be annotated for the file. 7. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA pulmonary/respiratory examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, the Veteran's service, reserve and post-service history of asbestos and tear gas exposure and the information contained from the websites mentioned in the brief dated in January 2013, should be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current lung disability(ies), to include COPD and/or, asthma. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service, to particularly include alleged asbestos exposure and/or tear gas exposure therein. The examiner should set forth all examination findings along with complete rationale for the conclusions reached in a printed (typewritten) report. 8. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 9. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 10. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the expanded claim on appeal in light of all pertinent evidence (to include all that added to record since the RO's last adjudication of the claim) and legal authority. 11. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).