Citation Nr: 1327502 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 08-22 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a respiratory disorder, to include pleural plaques as secondary to asbestos exposure in service. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1949 to September 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which denied service connection for pleural plaques. In December 1957, the RO previously denied service connection for pleurisy, which appears to be a diagnosis that is different from the current condition at issue. As established by the Federal Circuit, a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be the same claim when it has not been previously considered. Ephrain v. Brown, 82 F.3d 399 (Fed. Cir. 1996); see Boggs v. Peake, 520 F.3d 1330 (2008). Thus, the current claim will be treated as a new claim on appeal. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, to include VA treatment records. 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 Board finds that further development is necessary in order to properly decide the underlying merits of the claim. Such development includes affording the Veteran a new VA examination to assess the nature and etiology of his claimed respiratory disorder. See 38 U.S.C.A. § 5103A(d). Pursuant to VA's duty to assist, VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, or with a service connected disability, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran alleges that he has a respiratory disorder related to service or an asbestos-related disease secondary to in-service asbestos exposure. Specifically, he states that he was exposed to asbestos aboard a US Coast Guard ship as it was the main insulation of the ship. That exposure, along with exposure to tuberculosis from an infected shipmate and exposure to carbon tetrachloride from cleaning agents are claimed to be the causes of the Veteran's lung scarring and present respiratory disorder. VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual and Manual Rewrite. See Adjudication Manual, M21-1, part VI, para. 7.21 (October 3, 1997); Manual Rewrite, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006); see also VAOPGCPREC 4-00 (April 13, 2000). The guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. Also of significance is that an asbestos-related disease can develop from brief exposure to asbestos or from being a bystander. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. 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. See M21-1, Part IV.ii.2.C.9.h; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Veteran's claim under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). In this case, the Veteran's post service treatment records reflect a long-standing history of respiratory illnesses, to include diagnoses of pleurisy, chronic bronchitis, Chronic Obstructive Pulmonary Disease (COPD), pneumonia, asthma, reactive airway disease, and aspiration; and conditions noted such as chronic interstitial opacity in lung bases, pleural thickening of the lungs, and pleural plaques. More recent VA treatment records indicate that the Veteran does not have pleural plaques. The record is devoid of a medical opinion sufficiently linking any current diagnosis or finding to the Veteran's service. Therefore, additional development should be undertaken to verify whether the Veteran was exposed to asbestos in service. In any event, in consideration of the Veteran's assertions and the different theories of entitlement for service connection, Veteran should be afforded an examination to determine whether he has an asbestos-related disease or another respiratory disorder that is related to service. 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. The RO/AMC should attempt to verify the Veteran's claimed in-service asbestos exposure. All efforts to obtain these records should be fully documented, and the RO/AMC should request a negative response if records are not available. 2. The RO/AMC should schedule the Veteran for a VA examination to ascertain the current nature and etiology of any and all identified current respiratory disorder(s) to determine whether he has a current respiratory disorder or an asbestos-related disease, related to an event in service or asbestos exposure in service. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, to include X-ray studies relevant to claims involving asbestos exposure (e.g., B-reader). In the event that in-service asbestos exposure cannot be confirmed, the examiner is still requested to determine whether the Veteran has a current respiratory or pulmonary disorder that is possibly due to exposure to tuberculosis (from another crew member) or carbon tetrachloride exposure, or due to any other event in service. The examiner is also requested to review all pertinent records associated with the claims file and to provide a medical opinion, with supporting rationale, as to the following: Whether it is more likely than not, less likely than not, or at least as likely as not, that any current respiratory disorder(s), to include any asbestos-related disease, is/are related to active service to include exposure to asbestos in service. The examiner should discuss the Veteran's service as well as his post-service history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Ultimately, it is requested that the examiner determine the correct diagnosis(es) and determine whether there is a relationship to any in-service event, to include claimed asbestos exposure or TB exposure.) 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the claim should be reviewed by the RO/AMC on the basis of all additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ H. N. SCHWARTZ 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).