Citation Nr: 1310241 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-06 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as emphysema, including due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from July 1953 to November 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the above claim. In February 2010, the Veteran requested a hearing before a Veterans Law Judge at his local RO, but subsequently informed the RO that he would not be able to attend the hearing that was scheduled in October 2011. In January 2012, the Veteran's representative sought additional clarification at the Board's request and confirmed in writing that the Veteran wanted the Board to proceed with adjudication on the basis of the evidence already of record. Therefore, the Veteran's hearing request is withdrawn. See 38 C.F.R. § 20.704(e) (2012). In February 2012 and November 2012, the Board remanded the appeal to the AMC for additional evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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, an additional 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. Specifically, additional development is needed to ensure that the Board is in possession of all available relevant documentation of possible asbestos exposure during the Veteran's two periods of active service and that he has been provided with an adequate VA examination. Where a Veteran raises a claim for service connection for a respiratory disorder due to asbestos exposure, VA must (1) determine whether the evidence of record demonstrates evidence of asbestos exposure during service, (2) ensure that development is accomplished to determine whether the Veteran was exposed to asbestos (as a result of his/her occupation, for example) before or after service, and (3) determine whether or not a relationship exists between exposure to asbestos and the claimed disease, keeping in mind latency and exposure factors. See VA Adjudication Procedures Manual, M21-1MR, pt. IV, sbpt. ii, ch. 1, § H.29 (entitled "Developing Claims for Service Connection for Asbestos-Related Diseases") and ch. 2, § C.9 (entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos") (Jan. 7, 2007) (hereinafter M21-1MR). The VA Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, pt. IV, sbpt. ii, ch. 2, § C.9.a. Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR, pt. IV, sbpt. ii, ch. 2, § C.9.f. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. M21-1MR, pt. IV, sbpt. ii, ch. 2, § C.9.b. Inhalation of asbestos fibers can produce fibrosis, most commonly interstitial pulmonary fibrosis, or asbestosis; tumors, pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and the development of disease. 1MR, pt. IV, sbpt. ii, ch. 2, § C.9.d. The November 2012 VA examination report shows that the Veteran is diagnosed with chronic obstructive pulmonary disorder (COPD) and x-ray evidence suggests pleural effusions. The Veteran has alleged private medical findings of a "white mass," lung cancer, and emphysema, and that that respiratory problems were related to exposure to hazardous materials while repairing armored vests and chipping paint on eight different ships during service. See February 2009 statement. In November 2011, his representative alleged that exposure to asbestos occurred as a result of this activity. Consequently, the Board's February 2012 remand directed the AMC to undertake appropriate development to determine whether the Veteran was exposed to asbestos at the duties and locations he was assigned to during service by contacting the relevant Department of Defense office. In April 2012, the AMC contacted the Department of the Navy, Naval Sea Systems Command (NAVSEA), for verification of asbestos exposure during the Veteran's service from July 1953 to November 1959 in the 3rd Service Regiment, 3rd Marine Division. NAVSEA conducted a search of the Navy Asbestos Litigation Support Office (NAVALSO) database and found no documents related to this request. However, review of the record shows that the April 2012 letter did not contain all of the information necessary to conduct a proper search of the NAVALSO database. While the Veteran's DD-214 from his first period of service shows that he served with the General Support Service Company, 3rd Service Regiment, 3rd Marine Division in November 1956, his unit assignment at the time of separation from his second period of service in November 1959 was with the Maintenance Company, Detachment, 1st Force Service Regiment. No search was conducted for this unit assignment information, and, although the Veteran has claimed service on eight different ships, no request has been made for records showing his other unit assignments or any other jobs performed in service. His DD-214 from July 1953 to November 1956 shows that his occupational specialty code was 3261 and his DD-214 from November 1956 to November 1959 shows that his occupational specialty code was 3211, Reclamation and Salvage Man. Therefore, this appeal must be remanded for additional evidentiary development to facilitate the Board's determination of whether the Veteran was exposed to asbestos during service. See 38 U.S.C.A. § 5103A(b), (c)(1); 38 C.F.R. § 3.159(c)(2), (3); Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the AMC should obtain all available information on the Veteran's unit assignments; the dates of his unit assignments; the jobs the Veteran performed during each unit assignment; and any documented exposure to asbestos in service during those jobs and/or unit assignments from all appropriate federal departments and agencies, including (1) a request to the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES) code O16, for asbestos exposure claims and (2) a corrected request to Naval Sea Systems Command, as the request submitted in April 2012 did not contain all of the available relevant service information. See M21-1MR, pt. III, sbpt. iii, ch. 2, § D.23.c; see also Stegall, 11 Vet. App. at 271. If necessary, the AMC should contact the Veteran to obtain additional information necessary to obtain the service data described above. Additionally, a supplemental medical opinion is necessary prior to proceeding with the adjudication of the Veteran's appeal. In November 2012, the Veteran was provided with a VA examination. The examiner noted x-ray evidence suggesting plural effusions, but described them as "incidental" and did not provide a rationale for the opinion that this condition was not related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the examiner must provide the sort of factually accurate, fully articulated, and sound reasoning that allows the Board to assess whether the conclusion provided is the product of valid medical analysis applied to the significant facts of the particular case). Therefore, a supplemental medical opinion must be obtained, preferably from the November 2012 VA examiner. The examiner should provide an opinion on the etiology of any plural effusions and explain the characterization of the November 2012 x-ray evidence suggesting pleural effusions as "incidental." The examiner should also provide an opinion on whether the Veteran's COPD is related to asbestos exposure in service. These opinions must be supported by a discussion of the rationale for the conclusion reached by the examiner. Nieves-Rodriguez, 22 Vet. App. at 304; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall, 11 Vet. App. at 271. Lastly, an effort should be made to obtain any additional VA treatment records for the Veteran showing treatment for any respiratory disorder, dated since June 2011. 38 U.S.C.A. § 5103A(b)(3), (c)(2); 38 C.F.R. § 3.159(c)(2), (3). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's outstanding VA health treatment records related to treatment for a respiratory disorder, from the VA Medical Center in Columbus, Ohio. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Undertake all necessary action to determine whether the Veteran was exposed to asbestos in service, including a request to the National Personnel Records Center (NPRC) through the Personnel Information Exchange System (PIES), request code O16, for records showing unit assignments; dates of all unit assignments; jobs the Veteran performed during each unit assignment; and any exposure to asbestos in service during those jobs and/or unit assignments. See M21-1MR, pt. III, sbpt. iii, ch. 2, § D.23.c. If necessary, contact the Veteran to obtain any additional information necessary to properly develop any evidence of asbestos exposure in service. 3. Then, submit a second request to Naval Sea Systems Command for any additional information and/or verification of in-service asbestos exposure that includes all job and unit assignment information obtained, including, but not limited to, service with the General Support Service Company, 3rd Service Regiment, 3rd Marine Division at the end of his first period of service in November 1956, with occupational specialty code 3261 and service with the Maintenance Company, Detachment, 1st Force Service Regiment with occupational specialty code was 3211, Reclamation and Salvage Man, at the time of separation from service in November 1959, as the request submitted in April 2012 was incomplete. 4. Then, after all evidentiary development on asbestos exposure in service has been completed, request an addendum to the November 2012 VA examination report from the same examiner who conducted the November 2012 examination, if possible. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the requested opinion. Based on the review of this Remand and the claims folder, to include consideration of the Veteran's lay statements of record, the examiner should provide the following information: (a) Does the medical evidence establish the existence of pleural effusion, and if so, is at least as likely as not (50 percent or greater probability) that the Veteran currently suffers from pleural effusions as a result of asbestos exposure in service. For the purposes of this opinion, the examiner should presume that the Veteran was, in fact, exposed to asbestos in service. In providing this opinion, the examiner should specifically address the November 2012 chest x-ray findings that suggested pleural effusions and explain why these findings were described as "incidental" in the November 2012 VA examination report. (b) Is at least as likely as not (50 percent or greater probability) that the Veteran currently suffers from COPD effusions as a result of asbestos exposure in service? For the purposes of this opinion, the examiner should presume that the Veteran was, in fact, exposed to asbestos in service. The examiner should provide a full rationale for the opinions provided, and discuss the specific evidence and any medical principles considered in reaching those conclusions. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. 5. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 6. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter 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. _________________________________________________ S. L. Kennedy 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).