Citation Nr: 1321375 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-32 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos, herbicide, and radiation exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1967. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2008 rating decision of the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). Original jurisdiction currently resides at the RO in St. Louis, Missouri. In March 2013, the Veteran presented sworn testimony at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issues of whether new and material evidence has been received to reopen claims of entitlement to service connection for prostate cancer, to include as due to herbicide exposure, and asbestosis, to include as due to asbestos exposure, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See the Veteran's statements dated December 2007 and February 2010. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the current medical evidence of record documents a diagnosis of COPD. See, e.g., a VA treatment record dated December 2010. The Veteran contends that he was exposed to asbestos during military service aboard the USS Cook. See, e.g., the March 2013 Board hearing transcript, page 3. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR (M21- 1MR), Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Inhalation of asbestos fibers can produce fibrosis and tumors, most commonly 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 urogenital tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The applicable section of Manual M21-1MR 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, military equipment, etc. 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, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because of the potentially long latent period between the time of first exposure and development of disease. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 of VBA Manual M21-1, did 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. VA O.G.C. Prec. Op. No. 04-00. In short, 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 and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. The Veteran's personnel records confirm service aboard the USS Cook. Further, he was trained as a machinist's mate. Given the nature of the Veteran's duties, the Board recognizes that it is conceivable that the Veteran worked in close proximity to asbestos while serving aboard a naval vessel. Furthermore, the Board notes the Veteran's credible hearing testimony in which he recalls being onboard the USS Cook while it underwent significant renovations, at which time he believes that he was further exposed to asbestos. The Veteran maintains that his COPD is due to exposure to asbestos from working aboard the USS Cook. On this evidence, the Board finds that there is evidence of a current diagnosis of COPD, an in-service exposure to asbestos, and evidence that the two may be connected. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's current COPD and his service is warranted. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Request any VA treatment records pertaining to the Veteran's COPD that are not currently associated with the claims folder. All attempts to secure this evidence must be documented in the claims folder/Virtual VA eFolder. 3. After the above development is completed, to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his current COPD. The claims file, and any pertinent records contained in the Virtual VA eFolder, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and the physical examination, the examiner is asked to render an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's COPD is related to his active military service, to include his credible report of in-service asbestos exposure. The examiner is asked to provide the underlying reasons for any opinion expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ Bethany L. Buck 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).