Citation Nr: 1320042 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-46 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for asbestos related respiratory condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1964 to April 1966. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for asbestos related respiratory condition. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claims on appeal. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Veteran contends that he was exposed to asbestos during service; specifically, from January 1965 to April 1965 while on board the USS Sergeant for his tour of duty in South Korea. The Veteran maintains that the USS Sergeant was insulated with asbestos and he was required to blow out and clean boilers, which he states were laden with asbestos. The Veteran also contends that he was exposed to asbestos from the protective material around 106 recoilless rifle rounds. He states that he experienced shortness of breath and wheezing and was diagnosed with a minute case of asthma in service. According to the Veteran's August 2009 statement, he began working at the General Motors Assembly Plant after service separation, at which time, he experienced the same symptoms he had during service (wheezing and shortness of breath). The Veteran reported that he visited his local family physician who stated that "exposure to any unclean, smoky, or dense air" was the cause of his respiratory problems. The Veteran has not specified during what time period he was treated by his family physician. On remand, efforts should be made to locate the physician and obtain any relevant treatment records. Also in the August 2009 statement, the Veteran reported that he was found to have been exposed to asbestos by an entity called Asbestos Associates, which appears to be a law firm. According to a March 2008 correspondence from Asbestos Associates, the Veteran obtained a settlement for a claim against a company known as Shook and Fletcher, an insulation company. It is unclear from the evidence of record whether the settlement is related to the Veteran's period of active service. The Board finds that, on remand, efforts should be made to obtain relevant documents from Asbestos Associates in order to aid in the determination of whether the Veteran has an asbestos-related diagnosis and/or the cause of the Veteran's alleged respiratory condition. Further, the Veteran's DD 214 shows that he served as an armor and intelligence specialist while in the Army. In a service treatment record dated April 1965, the Veteran was seen for complaints of mild dysonea (shortness of breath), tachypnea (rapid breathing), and left chest tightening. In a September 1965 treatment note, the Veteran's lungs were clear and the heart showed possible left ventricular pattern. The Veteran has not been afforded a VA examination for his claimed respiratory condition. The Veterans Claims Assistance Act requires that VA assist a claimant in obtaining evidence needed to substantiate a claim on appeal. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2012); 38 C.F.R. § 3.159 (2012). In light of the Veteran's assertion of asbestos exposure and in-service treatment for shortness of breath and chest pain, as well as some indication of a respiratory condition, there remains some question as to whether the Veteran has a current disorder and, if so, whether it is attributable to his period of active military service, to include as due to asbestos exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, an examination and opinion are necessary prior to final appellate review. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that a remand is warranted in order to obtain any relevant medical evidence pertaining to the alleged asbestos exposure, to determine if the Veteran has a current diagnosis related to asbestos exposure, to determine if he was exposed to asbestos during service, and to determine if any current asbestos related disease is due to his military service or his post-service exposure. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information and authorization to enable the RO/AMC to obtain any additional pertinent treatment records not currently of record following the current procedures set forth in 38 C.F.R. § 3.159, to include the local family physician referenced in his August 2009 statement. If appropriately identified and the necessary authorization is submitted, request the treatment records. Associate all records/responses received with the claims file. 2. Request any pertinent medical and/or legal records from Asbestos Associates in Hattiesburg, Mississippi, regarding the Veteran's asbestos claim against Shook and Fletcher, after obtaining any necessary authorizations for the release of records. See March 31, 2008 letter from Asbestos Associates. 4. Take appropriate action to develop evidence of whether the Veteran was exposed to asbestos during service as an armor or intelligence specialist aboard USS Sergeant from January 1965 to April 1965 during his tour of duty in South Korea. Such development should include a determination regarding the extent to which his in-service environment might have exposed him to asbestos (e.g. cleaning boilers and exposed to protective material around 106 Recoilless rifles rounds). 5. Schedule the Veteran for a VA examination to ascertain the nature and likely etiology of asbestos related disease, claimed as respiratory problems and wheezing. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner must opine to the following questions: A) Does the Veteran have a current diagnosis of any asbestos related disease, claimed as respiratory problems and wheezing? If so, please state the diagnosis or diagnoses. B) For each asbestos related disorder diagnosed, the VA examiner must determine if it is at least likely as not (i.e. there is a 50 percent or greater probability) that any such condition had its onset in service; or, was it otherwise related to the Veteran's military service, to include any in-service exposure to asbestos. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A clear rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 6. After completion of the above and any additional development deemed necessary, readjudicate the claim for service connection. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and afforded an opportunity to respond, before the case is returned to the Board for appellate review. 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 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). _________________________________________________ K. J. ALIBRANDO 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).