Citation Nr: 1333380 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-08 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to November 1945, from December 1950 to September 1952, and from October 1952 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). REMAND The Veteran's contends that his current lung disorders, to include chronic obstructive pulmonary disease (COPD), emphysema, and asthma are the result of exposure to asbestos during active service. In this regard, the Veteran's service personnel records reflect that he served in the United States Army as a fire controlman, and a fire control mechanic during his period of active service. Service treatment records include examinations conducted in 1943 and 1945 reflecting normal lungs and chest. A March 1951 record shows that the Veteran was admitted to Walter Reed Army Hospital for complaints of pain in the left anterior chest on coughing; examination of his lungs at admission showed slightly decreased expansion over the right middle lobe. The diagnosis was pneumonia; x-rays showed a large patch of homogeneous haziness at the right base overlying the 4th and 5th anterior intercostals spaces which were interpreted to represent an inflammatory process. Subsequent reenlistment, periodic, and discharge examinations demonstrate normal lungs and chest. The Veteran periodically complained of chest pain as of 1967. A 1971 separation physical examination report reflects the Veteran's complaints of chest pain, shortness of breath, and hay fever; the examination report is negative for a diagnosis of a lung disorder. Post-service treatment records demonstrate diagnoses of asthma in May 1999, COPD in October 2003, and emphysema in July 2004. There is no statute that specifically addresses asbestos and service connection for asbestos-related diseases, nor has VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases which 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The manual provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. In this regard, in a May 2013 supplemental statement of the case, the RO noted the Veteran's military occupational specialties, and concluded that based upon a May 2002 internal Asbestos Claims Memorandum that the Veteran did not have a "possibility" of being exposed to asbestos. The Board, however, finds that the RO's attempt to verify the Veteran's asbestos exposure is incomplete. On remand, the RO should request that the Veteran provide specific information regarding his claimed inservice exposure to asbestos. Moreover, if the Veteran specifies the circumstances and a time frame of the claimed inservice exposure, the RO should also undertake efforts to obtain any additional information that may corroborate the Veteran's claimed inservice exposure to asbestos. Further, the RO must consider the Veteran's service treatment records detailed above, as well as all of his military occupational specialties in making such determination. In this regard, there is no indication that the RO considered the Veteran's service as a fire controlman, as it was not included in the May 2013 supplemental statement of the case reasons and bases section. In addition, the RO must develop whether there was any pre-service and/or post-service occupational and other asbestos exposure, and thereafter, determine whether there is a relationship between asbestos exposure and the claimed disorders. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29. If after the completion of the aforementioned development the RO determines that the Veteran was exposed to asbestos during service, then the VA examiner who performed the December 2012 examination must review the Veteran's claims file, and provide an addendum opinion addressing whether the Veteran's current COPD, emphysema, and/or asthma is related to the Veteran's military service, to include any inservice exposure to asbestos. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The claims file and all electronic records must be made available to the December 2012 VA examiner, and the examiner must specify in the examination report that these records have been reviewed. If the VA examiner who conducted the December 2012 examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the December 2012 VA examination. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. The examiner must express an opinion as to whether the Veteran's currently diagnosed chronic obstructive pulmonary disease, emphysema, and/or asthma disorders are related to the Veteran's active service, to include as due to his inservice complaints of shortness of breath, his treatment for pneumonia, or to any exposure to asbestos. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If the benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2013).