Citation Nr: 1308232 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-09 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for scarring of the lungs. 2. Entitlement to service connection for asbestosis. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from October 1965 to October 1967. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing conducted at the RO in November 2011. A transcript of that hearing is of record. The Board observes that while the Cape May County Veterans' Bureau submitted documents on the Veteran's behalf, it is not a recognized Veteran's service organization. The RO afforded the Veteran the opportunity to secure representation in his appeal, including most recently in a transmittal letter to a February 2010 statement of the case. There is no indication that the Veteran responsively requested representation, and he accordingly remains unrepresented in the present appeal. 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 Veteran has provided testimony in November 2011 to the effect that he suffered injury to his chest or lungs during a tower jump in service training when his harness was not properly adjusted, which injury necessitated hospitalization and resulted in ongoing chest pain. He contended at the hearing that the injury resulted in internal bleeding and tearing of his lungs. (hearing transcript, p. 20). Service treatment records contained within the claims file support a history of a tower jump injury with chest contusion or pleural injury of some sort in May 1966. A June 1967 report of medical history on service separation notes, "Pains in the lungs and back from an accident in Airborne course May 5, 1966." Some service hospitalizations were submitted by a veterans' support group, Cape May County Veterans' Bureau, on the Veteran's behalf in July 2009. These service hospitalization records together with the service treatment records already contained within the claims file paint a picture of a possible ongoing pleuritic condition developing in service. Two nearly identical copies of a service report of medical history from June 1967 are included among service treatment records within the claims file. The more detailed copy contains physician elaboration notes informing that the Veteran had shortness of breath following the Jump School accident on "May 4, 1966." Both copies of the report identically inform that the Veteran was treated for conditions of the lungs and back inclusive of 14 days of hospitalization at Gorgus Hospital, Baboa, Canal Zone, in May 1966; six days at Fort Guluck Clinic, For Guluck, Canal Zone, in June 1966; and two days of hospitalization at Gorgus Hospital in February 1967. This chronology on the report of medical history is not completely clear. It is clear that not all records of service hospitalization have been associated with the claims file. VBA Letter 20-99-60 (August 30, 1999) directs that service medical records and VA medical records be obtained in all cases. In McCormick v. Gober, No. 98-354 (U.S. Vet. App. August 18, 2000), the United States Court of Appeals for Veterans Claims (Court) held that VBA Letter 20-99-60 was a binding and substantive rule. While the Cape May County Veterans' Bureau submitted some records of these hospitalizations, their source for these records is not indicated, and there is no indication that any further service hospitalization records were sought by the RO. The requirement that these further hospitalization records be requested, by itself, requires remand in this case. Some service hospitalization records submitted on the Veteran's behalf in July 2009 reflect that pleural issues were resolving, based on a finding of only "mild residual precordial distress on deep breathing," as found upon service hospitalization in July 1966. However, upon subsequent hospitalization in February 1967 for right lower chest pain, a questionable pleuritic friction rub was suspected, and the examiner assessed pleural adhesions suspected. A clinical record cover sheet from February 1967 indicates that the hospitalization was for six days, and the diagnosis assigned was pleurisy. Thus, service records reflect some ongoing chest or lung difficulties following the Veteran's May 1966 in-service training injury. The Veteran was afforded a VA examination for compensation purposes in June 2009 to address his claims for service connection for scarring of the lungs and asbestosis. However, the examiner did not note any treatment in service for the Veteran's lungs or pleuritis other than the initial chest wall injury from a tower jump in 1966 without residuals. The examiner also noted that the Veteran's assertions of ongoing shortness of breath were "episodic." The service hospitalization records submitted by the Cape May County Veterans' Bureau were not yet of record at the time of the June 2009 examination, and the examiner did not note service treatment records that were then of record indicating ongoing shortness of breath issues in service. Thus, the June 2009 examiner's assessment appears to have been based on an inaccurate factual basis regarding the Veteran's medical history from service. Therefore, a new examination is needed on remand. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (inadequate examination requires new examination or an explanation why one will not be provided); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (examination inadequate if it provides an unsupported conclusion). Regarding the asbestosis claim, the Veteran provided testimony to the effect that he was exposed to asbestos including fraying asbestos fibers in the course of his duties as a cook in service, when he frequently had to adjust asbestos insulation that was falling from around the field oven, and when he had to use glove-like oven mitts constructed of asbestos in the course of cooking duties. The Veteran also then acknowledged the possibility of otherwise coming into contact with asbestos in the kitchen or mess hall or barracks in the course of his military service. The Veteran's service personnel records confirm the Veteran's cooking duties. Unfortunately, the record provides scant information about potential asbestos exposures prior to service or post service. At his hearing the Veteran reported work prior to service at a gas station, and post service at a gas station, at a hardware store, and as a janitor. However, he did not address potential asbestos exposures at those jobs. A medical opinion by an appropriate specialist in asbestosis and its etiologies should be obtained to inform adjudication of the Veteran's claim. The June 2009 VA examination entirely did not note any history of asbestos exposure in service, necessitating a new examination. Barr; Reonal; Stefl. There is no specific statutory or regulatory guidance with regard to claims of service connection for asbestosis or other asbestos-related diseases. However, VA has issued guidelines for considering asbestos compensation claims. See VA Adjudication Procedure Manual, M21-1MR, part IV.ii.2.C.9. The Court has held that VA must analyze claims of service connection for asbestosis or asbestos-related disabilities under the administrative protocols established by these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993). In Dyment v. West, 13 Vet. App. 141, 145, the Court found that provisions in former paragraph 7.68 of VBA Manual M21-1, Part VI (the predecessor to the current M21-1MR asbestos guidelines), did not create a presumption of exposure to asbestos. Rather, medical nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. See also VA O.G.C. Prec. Op. No. 04-00. M21-1 MR provides the following guidelines for considering claims based on exposure to asbestos during service: [D]etermine whether or not service records demonstrate the Veteran was exposed to asbestos during service[,] [E] nsure that development is accomplished to determine whether or not the Veteran was exposed to asbestos either before or after service, and [D]etermine whether or not a relationship exists between exposure to asbestos and the claimed disease, keeping in mind latency and exposure factors. VA Adjudication Procedure Manual, M21-1MR, part IV.ii.2.C.9.h. (2005). The RO or AMC must assure that these guidelines are followed upon remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded the opportunity to submit additional evidence or argument in furtherance of his appealed claims. 2. The RO/AMC should obtain, with appropriate authorization and assistance, any additional VA or private treatment records pertinent to the appealed claims. 3. The RO/AMC should make all reasonable efforts to obtain service hospitalization records, including those noted in the June 1967 service report of medical history, as noted in the body of this remand. All requests, responses, and records received should be documented in the claims file. 4. Thereafter, afford the Veteran an examination by an appropriate specialist in respiratory disorders who has expertise in asbestos and its causal etiologies. The examination is to ascertain whether respiratory disorders including asbestosis and scarring of the lungs developed as a result of exposures or injuries in service. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should elicit a personal history from the Veteran as relevant to the claimed lung disorders, including asbestos exposures or potential exposures in service and out of service, smoking history, history of the jump injury in service and subsequent treatments and hospitalizations, history of respiratory symptoms and disease, and any other history relevant to the current respiratory disorders claims. Any necessary tests or studies should be conducted, and their findings should be reflected on the examination report. The examiner should do the following: a. The examiner should identify all current respiratory disorders, to include any current asbestosis and any current scarring of the lungs or other residuals of chest, lung, or pleural injury, as indicated by the record, history, and current findings. b. For each current lung or pleural disorder found, the examiner should provide a separate opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder developed in service or was otherwise causally related to service (including related to ionizing radiation exposure in service), or, alternatively, whether any relationship to service was unlikely. c. For the Veteran's claimed asbestosis, the examination should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that any current asbestosis found was caused by asbestos exposure in service, rather than as a result of exposures at other times. e. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, the examiner must provide an explanation as to why this is so. 5. Assure that the asbestos exposure related adjudication guidelines within VA Adjudication Procedure Manual, M21-1MR, part IV.ii.2.C.9.h, as quoted in the body of this remand, are followed. 6. Thereafter, the Veteran's claims of entitlement to service connection for scarring of the lungs and asbestosis must be readjudicated. If any benefit sought on appeal remains denied, the Veteran must be furnished a supplemental statement of the case (SSOC) and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).