Citation Nr: 1317745 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-42 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a pulmonary disorder, claimed as due to in-service exposure to asbestos and/or herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. A review of the Virtual VA electronic records storage system does not reveal any additional evidence which is not currently associated with the paper claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his pulmonary disorder results from in-service asbestos and/or herbicide exposure. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The 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, Part IV, Subpart ii, Chapter 2, Section C, Subsection (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. at Subsection (a). 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. Id. at Subsection (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. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is 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. at Subsection (b). 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). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). Here, the available medical evidence reflects that the Veteran may manifest co-existing pulmonary disorders of emphysema and pulmonary interstitial fibrosis, the latter of which may be associated with asbestos exposure. Pulmonary function testing (PFT) demonstrates both a restrictive breathing impairment as well as an impairment of diffusion capacity. The statements from the Veteran himself clearly demonstrate an 80-pack history of cigarette smoking. He further describes a 15-year history of asbestos exposure in a civilian capacity. The Veteran has also reported the use of asbestos-coated gloves when using a M60 machine gun mounted on the back of a Jeep during his Vietnam service. In Vietnam, the Veteran served as a combat construction specialist. He also alleges exposure to asbestos during barracks renovation at Fort Leonard Wood in 1967 as well as at military barracks while stationed in Vietnam. To date, the Board has no reliable information as to whether the Veteran was exposed to asbestos in service as claimed. It is unlikely that the exposures claimed by the Veteran would be documented in his service treatment records (STRs) or service personnel records (SPRs). As the Veteran may manifest an asbestos-related pulmonary disorder, the Board finds that VA has a duty to investigate whether the Veteran may have been exposed to asbestos in service as claimed. Thus, the Board will request that the appropriate service department determine whether the Veteran's activities of wearing a heat dissipating glove and being at Fort Leonard Wood during renovations may have exposed him to asbestos. Additionally, the Board notes that the Veteran is presumed to have been exposed to herbicides coincident with his service in Vietnam in September 1968 to August 1969. While he does not have a current diagnosis of a disorder that is presumptively related to herbicides, he is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, after confirming whether the Veteran was exposed to asbestos during service, the Veteran should be afforded a VA examination so as to determine the current nature of his pulmonary disorder and whether it is related to his military service, to include as a result of exposure to asbestos (if verified) or exposure to herbicides. The Board observes that, in February 2008, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) requesting VA assistance in obtaining medical records from Dr. S. of the University of Utah for treatment provided in October 2007. While it does not appear that the agency of original jurisdiction (AOJ) contacted the University of Utah directly, records from such facility, dated in October 2007 detailing treatment by Dr. S. have been associated with the claims file. Thereafter, in his May 2009 notice of disagreement, the Veteran indicated that he was awaiting documentation from the University of Utah. It is unclear whether the Veteran is referring to the October 2007 treatment by Dr. S. or additional records from such facility. Therefore, while on remand, he should be given an opportunity to identify any healthcare provider who treated him for his pulmonary disorder and, thereafter, all identified treatment records, to include any additional records from the University of Utah, should be obtained for consideration of his appeal. The Board finally notes that, in February 2008, the Veteran filed a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) electing the Disabled American Veterans as his representative. In a statement dated May 2009, the Veteran asserted that he was represented by Attorney S.K. yet, to date, the claims folder does not reflect that the Veteran has properly authorized this attorney to represent him before VA. On remand, the Veteran should be advised of the requirements for authorizing a private attorney to represent him before VA. Accordingly, the case is REMANDED for the following action: 1. (a) The Veteran should be given an opportunity to identify any healthcare provider who treated him for his pulmonary disorder. He should be advised that records from the University of Utah detailing treatment by Dr. S. in October 2007 are of record. After securing any necessary authorization from him, obtain all identified treatment records, to include any additional records from the University of Utah. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). (b) Advise the Veteran that he has currently elected the DAV as his representative before VA, and the filing requirements for authorizing a private attorney such as Attorney S.K. to represent him before VA. (c) The Veteran should be further offered the opportunity to submit any evidence which tends to show that the heat dissipating gloves that he used in service contained asbestos, or that he was exposed to asbestos at any barracks that he may have been present. 2. Obtain all available information regarding the Veteran's military duties and the likelihood of asbestos exposure from any appropriate agency. In particular, determine whether the heat dissipating gloves described by the Veteran for machine gun duties (firing a M60 machine gun mounted on the back of a Jeep) in Vietnam may have contained asbestos, and whether any renovations which took place at Fort Leonard Wood between January and March 1967 may have exposed the Veteran to asbestos. 3. After completing the foregoing development, schedule the Veteran for VA examination with an appropriately qualified medical professional to clarify the diagnoses of his pulmonary disorders and to obtain opinion as to whether any currently manifested pulmonary disorder is causally related to an event in service. All appropriate tests should be conducted. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. The examination report should note that such a review took place. The AOJ should provide the examiner its findings as to the nature and extent of the Veteran's asbestos exposure in service, if any. The examiner is requested to identify all currently manifested pulmonary disorders, to include whether any such disorders are deemed an asbestos-related disease. The examiner is requested to explain the characteristics of an asbestos-related pulmonary disease. For each diagnosis provided, the examiner must provide an opinion, based on a review of the claims folder and utilizing sound medical principles, as to whether it is at least as likely as not (50 percent probability or greater) that any currently manifested pulmonary disorder is related to the Veteran's military service, to include as a result of exposure to asbestos (if verified) OR exposure to herbicides? The rationale for all opinions expressed should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).