Citation Nr: 1308625 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-46 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to November 1955. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. The appellant seeks surviving spouse benefits. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on 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 Additional development is needed prior to the disposition of the appellant's claim. VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development. The appellant contends that the Veteran's service aboard a submarine exposed him to asbestos which contributed to his pulmonary fibrosis and therefore his cause of death. The Veteran's Form DD-214 reflects a military occupational specialty of "ordinary seaman" and shows that he was employed as a machinist apprentice at a naval shipyard prior to service. The Veteran's death certificate reflects that he died in April 2009. The death certificate lists the immediate cause of death as refractory multilobar pneumonia with chronic esophagitis with reflux and progressive pulmonary fibrosis of unknown etiology, as other significant conditions contributing to death. At the time of the Veteran's death, service connection was not in effect for any disorder. VA has issued a circular as to claims of service connection for asbestosis or other asbestos-related diseases. That 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 new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; 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. 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 that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, or military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, United States Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of the 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). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. However, the provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, do not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. Dyment v. West, 13 Vet. App. 141 (1999). 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 or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. 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 the cause of the Veteran's death due to exposure to asbestos under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993). The Veteran's service treatment records are negative for any complaints or clinical findings of exposure to asbestos. However, his service personnel records show that he was assigned to a Navy vessel that may have placed him at risk of asbestos exposure. Private hospital treatment records dated in April 2009 show that the Veteran presented for emergency room care and treatment of community-acquired pneumonia, lower lobe infiltrate. He was a former smoker who had not smoked in 45 years. He was exposed to secondhand smoke during childhood and his young adult life, but had such exposure in recent years. It was noted that during service, he worked on submarines and had some asbestos exposure. While he did not work directly with asbestos, he was in the vicinity of other people who worked with asbestos. The assessment included left lower lobe pneumonia, fever with anemia, and acute renal failure. At that time, treating physician Dr. A. R., indicated that the Veteran was admitted with pneumonia and had acute renal insufficiency most likely secondary to prerenal azotemia due to pneumonia and decreased intravascular volume status. In a June 2009 statement, Dr. A. R. indicated that the Veteran had been under his care for the past few years with multiple medical problems and also received medical treatment at the Newington, Connecticut VA Medical Center (VAMC). He stated that [in April 2009] the Veteran was admitted to the hospital due to a high fever and pneumonia and that a chest X-ray and CT scan of the chest showed interstitial fibrosis and interstitial lung disease in addition to pneumonia. Although the exact cause of the Veteran's pulmonary fibrosis was not determined due to a lack of tissue or autopsy study, the physician opined that chronic methotrexate therapy contributed significantly to the Veteran's pulmonary fibrosis and chronic anemia. Methotrexate was used for treatment of the Veteran's psoriatic arthritis. The Board notes that the record is devoid of a diagnosis of asbestosis or asbestos-related disorder, or a medical opinion linking any current diagnosis or finding to the Veteran's period of active duty. Therefore, additional development should be undertaken to verify whether the appellant was exposed to asbestos in service. If asbestos exposure is verified, an opinion should be obtained to determine whether asbestos exposure contributed to the Veteran's death or, in the alternative whether any asbestos exposure was related to the Veteran's active service, prior to final adjudication of this claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012), 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Board notes that treatment records from the Newington VAMC and private treatment records from Dr. A. R. have not been requested or obtained. Accordingly, on remand these records should be obtained. Further, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. A review should be conducted of the electronic file, and if documents contained therein are deemed to be relevant to the issue on appeal and are not duplicative of those already found in the paper claims file, action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims file and provide a medical opinion in conjunction with the development requested herein. 38 C.F.R. § 3.159(c)(1) and (2). Accordingly, the case is REMANDED for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records pertaining to treatment of the Veteran's pulmonary and/or respiratory disorders, including records from the Newington VAMC; and additional private medical records including those from Dr. A. R. 2. Then, the RO or AMC should contact the service department regarding the assertion that the Veteran was exposed to asbestos during service as an ordinary seaman. Supply the service department, or other appropriate authority, with the appropriate information regarding the Veteran and his service, and request verification of whether it is at least as likely as not (50 percent or greater probability) that the Veteran's activities during service would have exposed him to asbestos. 3. If the Veteran's in-service exposure to asbestos is verified, arrange for a VA examiner to review the Veteran's claim folder and determine whether the Veteran's cause of death was related to his service. The examiner should review the claims file and should note that review in the report. The rationale for all opinions should be provided. Specifically, the examiner should provide the following opinions: (a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any respiratory or pulmonary disorder was related to the Veteran's active service, to specifically include any in-service exposure to asbestos. (b) If so, the reviewer should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that a respiratory or pulmonary disorder related to the Veteran's in-service exposure to asbestos, caused or contributed materially or substantially to the Veteran's death as a result of progressive pulmonary fibrosis (of unknown etiology) and the conditions of chronic esophagitis with reflux and refractory multilobar pneumonia which gave rise to the immediate cause of death. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the appellant's satisfaction, the RO or the AMC should furnish to the appellant a supplemental statement of the case and afford her the requisite opportunity to respond before returning the case to the Board for further appellate action. 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). _________________________________________________ MARK W. GREENSTREET 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).