Citation Nr: 1410439 Decision Date: 03/13/14 Archive Date: 03/20/14 DOCKET NO. 10-38 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for asbestosis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to July 1973, with additional periods of active duty for training and inactive duty for training with the Naval Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York City, New York. In August 2012 a hearing on this matter was held before the undersigned Veterans Law Judge sitting at the RO. The transcript of that proceeding is of record. 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 Veteran has been diagnosed with asbestos-related pulmonary disorders, which he attributes to his active service. Specifically, he asserts that he slept under asbestos-covered pipes while serving aboard Naval vessels, to include the USS Intrepid, during his active service, and that he and his fellow crewmembers would often pull balls of asbestos lining out, exposing them to friable asbestos fibers. There are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). VA has, however, provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1R (M21-1R), Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29. Additional guidance is found in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. These M21-1R guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). In this regard, the service personnel records show that the Veteran served on the USS Intrepid (CV 11) while on active duty. Further, the Intrepid was first commissioned in 1943, and among other things, asbestos insulation was commonly used on Essex class carriers to which the Intrepid belonged. VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is 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 gastrointestinal tract. Veterans Benefits Administration Manual M21-1R, Part IV, Subpart ii, Section C, Paragraph 9. It does not appear that the procedures outlined in the VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, and Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 have been followed concerning development of a claim involving asbestos. Consequently, additional development must be undertaken before the claim is ready for appellate review. The Veteran has submitted a statement from a private pulmonologist, dated October 2012, diagnosing asbestosis and noting the Veteran's stated history of exposure to asbestos during active service. While the physician did not directly indicate whether the diagnosed asbestosis is related to asbestos exposure in service, the opinion references no postservice asbestos exposure. Thus, on remand, a VA examination must be scheduled. Accordingly, the case is REMANDED for the following action: 1. Ensure that any notification action outlined by the VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29; and Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 concerning asbestos are fully complied with and satisfied. 2. The Veteran is requested to provide a list of his employers prior to service, and following his separation from service. This should include complete addresses, dates of employment, and his job title and duties during each period of employment. All attempts to procure records should be documented in the file. Once this information is received, contact each employer and inquire as to the Veteran's job duties, in order to determine whether the duties involved exposure to asbestos. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. He must be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Thereafter, schedule the Veteran for a pulmonary examination at an appropriate VA medical facility. His claims folder and all pertinent records from Virtual VA and/or VBMS files must be made available for the pulmonologist's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. Based on a review of the claims file and the clinical findings of the examination, the pulmonologist must state whether it is at least as likely as not. i.e., is there a probability of 50 percent or greater, that the Veteran's pulmonary disorder is related to the appellant's active duty service or is otherwise etiologically related to his period of service, to include his service on the USS Intrepid. A complete a fully reasoned rationale must be provided for any opinion offered, 4. Then, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).