Citation Nr: 1319700 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-27 670A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In October 2012, the Board remanded the case for rescheduling of the Veteran's requested Travel Board hearing. The hearing was rescheduled for a date in March 2013, but February 2013, the Veteran cancelled his request for the hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2012). The case has been returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 The Veteran contends that his currently diagnosed COPD is the result of exposure to asbestos during his active military service. Specifically, he claims that while serving as a boatswain's mate seaman in the Navy, he was responsible for ship's maintenance, which included the deck, painting, upkeep of the ship's external structure, deck equipment, boats, and fuel. The Veteran's MOS indicates that he served as a boatswain's mate aboard the U.S.S. C.S. Sperry in the Navy. However, there is no indication that the Veteran was exposed to asbestos or any caustic chemicals in service. Service treatment records show that the Veteran was treated for chronic upper respiratory infections, tonsillitis, infectious mononucleosis, the common cold, sore throat, fever, malaise, gastritis, upset stomach, and conjunctivitis. However, chest X-ray at the time of the Veteran's discharge examination was normal, and no pulmonary or respiratory disorders were diagnosed. Private treatment records show that the Veteran has been diagnosed with COPD and noted to have a history of smoking. November 2008 notes show that the Veteran reported asbestos exposure for three years in the Navy in the late 1950's. The private physician opined that although the Veteran had a past history of smoking, his naval exposure could have contributed to his lung disease. He did not offer a rationale for his opinion. Furthermore, he failed to indicate that he had reviewed the medical evidence of record, including the Veteran's entire claims file, prior to rendering his opinion. Therefore, his opinion lacks probative value, and is inadequate for rating purposes. There is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). With asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). To this end, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind exposure information and that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), (d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21-1, Part VI, 7.21. Under the VCAA, VA is obliged to provide an examination in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In light of the medical evidence and the Veteran's contentions, the Board finds that further development is necessary in an attempt to corroborate the claimed asbestos exposure in service. In asbestos related claims, medical examination and any associated opinions should include review of the claims file by a physician who is a certified "B reader." As a matter of background information, B reader approval is granted to physicians with a valid U.S. state medical license who demonstrate proficiency (via examination) in the classification of chest radiographs for pneumoconioses using the International Labor Office Classification System. It is also used to classify chest radiographs of asbestos-exposed-exposed workers governed by the U.S. Department of Labor regulations, and for medical screening, surveillance, research, or compensation programs. See National Institute for Occupational Safety and Health (NIOSH) Website on Safety and Health Topic: Chest Radiography. Additionally, the Board finds that a VA examination is warranted to determine the current nature and etiology of any current pulmonary disorder. 38 U.S.C.A. § 5103A(d) (West 2002). Indeed, as noted above, the private physician who diagnosed the Veteran with COPD, opined in November 2008 that the Veteran's asbestos exposure in the Navy could have contributed to his lung disease. The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). 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. A VCAA letter addressing claimed asbestos exposure should be sent to the Veteran. 2. Contact the service department and/or any other available source to determine if the Veteran worked in areas and performed duties where he would have been exposed to asbestos aboard the U.S.S. C.S. Sperry during his service with the U.S. Navy in from 1955-1959. Consider the Veteran's contention of exposure in connection with his MOS duties, or any other duties he claims to have performed, including deck maintenance, painting, upkeep of the ship's external structure, and maintenance and handling of deck equipment, boats and fuel. 3. Thereafter, schedule the Veteran for an appropriate VA examination by a pulmonary specialist to determine the nature and etiology of any currently present pulmonary disorder. The claims folder must be made available for review by the examiner in conjunction with the examination. Any other indicated studies should be conducted. The examination should include a chest x-ray with a B-reading, by the appropriate pulmonary specialist. The examiner should also obtain from the Veteran a history of his asbestos exposure, to include during service via his MOS as a boatswain's mate and his pre and post service pulmonary history, as well as his smoking history. Based on the examination, review of the record, and a detailed reading of scan and test results, the examiner should provide a medical opinion as to whether or not the Veteran has asbestosis, or any other lung disability due to asbestos exposure, and to provide a definitive diagnosis of the lung disability. The examiner should also identify any non-asbestos related pulmonary disorder found. If it is found that the Veteran does have an asbestos-related pulmonary disorder, including the presence of pleural thickening, the examiner should further opine whether such disability is, at least as likely as not (a 50 percent probability or greater), related to asbestos exposure in service. If the Veteran is diagnosed with a pulmonary disorder that is not related to asbestos exposure, the examiner should comment as to whether such disability is otherwise at least as likely as not (a 50 percent probability or greater), related to some aspect of the Veteran's period of active service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. The examiner should specifically, consider the evidence noted above of chronic upper respiratory infections, tonsillitis, infectious mononucleosis, the common cold, sore throat, fever, malaise, gastritis, upset stomach, and conjunctivitis in service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should be returned to the Board, if otherwise in order. 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). _________________________________________________ F. JUDGE FLOWERS 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).