Citation Nr: 1416241	
Decision Date: 04/11/14    Archive Date: 04/24/14

DOCKET NO.  12-27 896	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to in-service exposure to asbestos.

2.  Entitlement to service connection for COPD, to include as secondary to in-service exposure to asbestos.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Katz, Counsel


INTRODUCTION

The Veteran served on active duty from June 1958 to May 1960. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO).  

The issues of whether new and material evidence has been received to reopen the claims of entitlement to service connection for atrial fibrillation and Hodgkin's disease, to include as secondary to in-service asbestos exposure, have been raised by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for COPD, to include as secondary to in-service exposure to asbestos, is addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A May 2002 rating decision denied service connection for COPD.  In January 2003, the Veteran submitted lay and private medical evidence in support of his claim for service connection.

2.  In a January 2003 rating decision, the RO denied service connection for asbestosis with pleural plaques.

3.  Evidence received since the January 2003 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for COPD.


CONCLUSIONS OF LAW

1.  The January 2003 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

2.  Evidence submitted to reopen the claim of entitlement to service connection for COPD is new and material, and the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify claimants of information and evidence necessary to substantiate the claim and redefined its duty to assist her in obtaining such evidence.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2013).  As the Board is reopening the Veteran's claim for entitlement to service connection for COPD herein, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for COPD.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

New evidence means existing evidence not previously submitted to VA.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013). 

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108.  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

The RO denied service connection for COPD in May 2002, and notified the Veteran of the decision in June 2002.  In January 2003, the Veteran provided additional lay evidence and private medical treatment records in support of his claim.  By a January 2003 rating decision, the RO denied service connection for asbestosis with pleural plaques.  The Veteran was notified of the January 2003 decision that same month.  The January 2003 rating decision was not appealed, and the Veteran did not submit documentation within the one-year appeal period that would constitute new and material evidence.  Thus, that decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 

The May 2002 rating decision denied service connection for COPD because the evidence did not demonstrate that the Veteran's COPD was related to his active duty service.  Similarly, the January 2003 rating decision denied service connection for asbestosis with pleural plaques because the evidence did not show that the Veteran was exposed to asbestos during service or that his disability was otherwise related to service.  Thus, in order for the Veteran's claim to be reopened, evidence must be added to the record since the January 2003 rating decision addressing this basis.

In November 2010, the Veteran filed the current claim to reopen the issue of entitlement to service connection for COPD.  In the June 2011 rating decision, the RO denied reopening the Veteran's claim.  However, in a September 2012 statement of the case, the RO reopened the claim.

Although the RO determined that new and material evidence was presented to reopen the claim of entitlement to service connection for COPD, the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claims.  Jackson, Id.  Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision.

Since the January 2003 rating decision, evidence added to the claims file includes VA treatment records, private medical treatment records, a VA opinion letter, and a private opinion letter.  The pertinent newly submitted evidence includes a November 2010 letter from A. Nichani, M.D., who opined that the Veteran's COPD was secondary to smoking and asbestos exposure during military service.  Similarly, in a November 2010 letter, C. Ozborn, M.D. stated that the Veteran's lung problems were at least as likely as not caused by exposure during military service.  The Veteran's claim for service connection was originally denied because the evidence of record did not link his COPD to his active military service and did not establish exposure to asbestos during service.  The newly submitted evidence clearly links the Veteran's COPD to asbestos exposure during active duty service.

The opinion letters are new evidence, because they were not of record at the time of the January 2003 rating decision.  The evidence is material because it provides a nexus to the Veteran's alleged asbestos exposure during service.  Thus, the newly received evidence raises a reasonable possibility of establishing the Veteran's claim for service connection.  Accordingly, his claim for entitlement to service connection for COPD is reopened.


ORDER

New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for COPD is reopened, and, to that that extent only, the appeal is granted.


REMAND

The Veteran's claim of entitlement to service connection for COPD, to include as secondary to in-service asbestos exposure, must remanded for further development.

As noted above, the evidence of record establishes diagnoses of COPD and a link to asbestos exposure.  The Veteran has provided numerous lay statements explaining his alleged in-service exposure to asbestos.  Specifically, the Veteran contends that he lived and worked at the Coffey Barracks in Germany, which were old World War II barracks.  He explained that the building was heated with steam and that the steam pipes were covered with asbestos insulation.  The Veteran reported that he was in the Quarter Master Supply in charge of company armor and worked in the basement of the barracks.  He stated that the steam pipes ran overhead along the ceiling of the basement and that the insulation was old and torn up.  He reported that white powder would fall off the pipes so much that he had to keep a sheet over the weapons.  Every day, he had to shake the dust off of the sheets protecting the weapons and sweep up the asbestos dust.  He noted that he was smoking and breathing asbestos dust all day from December 1958 to May 1960.

There is no specific statutory guidance with regard to asbestos-related claims, and the Secretary has not 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) (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 a VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. 

These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate).  See M21-1, Part VI, 7.21(a), p. 7-IV-3; see also Ennis v. Brown, 4 Vet. App. 523 (1993).  Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolarygneal, gastrointestinal, and urogenital cancers, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure.  See id.   

The guidelines provide that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and that an asbestos-related disease can develop from brief exposure to asbestos.  See M21-1, Part VI, 7.21(b), p. 7-IV-3 (January 31, 1997).

Under the provisions of M21-1, Part VI, 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.

Toward this point, the Court has held that, in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed.  See Ashford v. Brown, 10 Vet. App. 120 (1997).  The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information.  See M21-1MR, Part VI, Subpart ii, Chapter 2, Sec. C (9)(h). 

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 M21-1MR, Part VI, Subpart ii, Chapter 2, Sec. C(9)(h). 

After reviewing the evidence of record, the Board believes that additional efforts should be made to corroborate the Veteran's reports of exposure to asbestos during service.  Initially, the RO should obtain the Veteran's service personnel records.  Additionally, the RO should contact the service department and any other relevant records custodian to determine the likelihood that there was asbestos contained in the Coffey Barracks from 1958 to 1960.  All efforts to corroborate the Veteran's reported exposure should be documented in the claims file.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1.  Obtain the Veteran's service personnel records and associate them with the claims file.

2.  Attempt to verify the Veteran's claimed in-service asbestos exposure by contacting the service department and any other relevant records custodian.  Specifically, the RO should determine the likelihood that asbestos may have been contained within Coffey Barracks in Germany during the time period of 1958 to 1960.  All efforts to obtain these records should be fully documented, and the RO should request a negative response if records are not available.

3.  All attempts to secure this evidence must be documented in the claims file by the RO.  In compliance with 38 C.F.R. § 3.159(c)(2) (2013), the RO must make as many requests as are necessary to obtain records in the custody of a Federal department or agency and shall not end its efforts to obtain those records unless the RO concludes that the records sought do not exist or that further efforts to obtain those records would be futile.  If the RO concludes that such records do not exist or that further efforts to obtain the records would be futile, the RO must make a formal finding to that effect.  The RO must also provide the Veteran and his representative with a proper notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) notice that the Veteran is ultimately responsible for providing the evidence.  38 C.F.R. § 3.159(e).  The Veteran and his representative must then be given an opportunity to respond.

4.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. 2013).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs