Citation Nr: 1423075 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 14-05 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a cardiac disorder, to include as due to contaminated water. 2. Entitlement to service connection for a cardiac disorder, to include as due to contaminated water. 3. Entitlement to service connection for a pulmonary disorder, to include asbestosis, as the result of asbestos exposure. ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's VA claims file has since been transferred to the RO in Louisville, Kentucky. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue(s) of entitlement to service connection for a cardiac disorder and a pulmonary disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final rating decision dated April 2007, the RO denied service connection for a cardiac disorder, in pertinent part, because the record was silent for a current cardiac diagnosis. 2. Evidence received since the April 2007 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a cardiac disorder. CONCLUSIONS OF LAW 1. The unappealed April 2007 rating decision that denied service connection for a cardiac disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. The evidence received since the April 2007 rating decision is new and material; the claim for entitlement to service connection for a cardiac disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify a claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In the instant case, the Veteran's new and material evidence claim 38 U.S.C.A. § ; is granted herein. As such, any deficiencies with regard to VCAA for this issue are harmless and non-prejudicial. II. New and Material Evidence The Veteran has claimed entitlement to service connection for a cardiac disorder. Most recently, he contended that he has a current cardiac diagnosis related to contaminated drinking water at Camp Lejeune. His prior cardiac claim, however, did not focus on impure drinking water as the sole cause of his heart conditions. The RO denied the Veteran's claim for entitlement to service connection for a cardiac disorder in April 2007 because medical evidence at that time did not include a cardiac diagnosis. He did not appeal that rating decision, and it became final. The Board notes that a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 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). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran's claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Since the prior final decisions, new evidence has been added to the claims file. The most pertinent new evidence consists of private treatment records, as well as VA outpatient reports, which demonstrate diagnoses of several cardiac disorders. These disorders include hypertensive heart disease with atrial fibrillation, mitral and tricuspid regurgitation, coronary artery disease, and congestive heart failure. See VA Examination Note, November 2013. As noted above, there is a "low threshold" for determining whether additional evidence submitted since a prior final decision provides new and material evidence to reopen a claim. See Shade (explaining the new and material evidence requirements of 38 C.F.R. § 3.156(a)). Again, the Veteran's claim for service connection was denied (in part) because there was no credible evidence to support the incurrence of a claimed, in-service stressor. As such, these diagnoses cure a prior evidentiary defect, in that post-service evidence, not of record at the time of the prior, final decision, indicates that the Veteran has several current cardiac diagnoses. Accordingly, new and material evidence has been received to reopen the claim for service connection for a cardiac disorder. Entitlement to service connection for this issue is addressed further in the REMAND section below. ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a cardiac disorder; the claim is granted to this extent only. REMAND Although the Board regrets any further delay, pursuant to the duty to assist, the Veteran's remaining claims must be remanded for further development. Regarding the Veteran's pulmonary claim, he contends that he developed disorders of the lung (to include chronic obstructive pulmonary disease (COPD) and asbestosis) as the result of in-service asbestos exposure. He reported that he worked on amphibious base tractors, and onboard a U.S. Navy vessel, and thus was exposed to asbestos. The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary 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). It is noted that 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. It is also noted 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). The Board notes that under the provisions of the 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. The Court has held that "neither Manual M21-1 nor the Circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure to asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4- 2000. To this point, the Court has further 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). Here, a January 2010 x-ray noted irregular parenchymal opacities and diffuse pleural thickening. It was noted that the diagnosis of bilateral interstitial fibrosis due to asbestosis was consistent with significant occupational exposure to asbestos dust. He was also diagnosed with respiratory failure and COPD in October 2009. However, to this point, there is nothing in the record to show that VA has attempted to verify whether the Veteran was, in fact, exposed to asbestos during his tour of duty. His unit assignment history is of record, and his military occupational specialty (MOS) was AmTrac Crewman. As such, the Veteran's DD-214 supports his contentions. While a VA opinion was obtained in November 2013, the examiner indicated that the Veteran was not exposed to asbestos via Camp Lejeune drinking water, and that he had a history of occupational exposure to respiratory carcinogens via his work as a machinist. It was also noted that the Veteran had a history of occupational asbestos exposure and that he had a long history of tobacco addiction. While the opinion was ultimately negative, the Board notes that the Veteran's claimed in-service asbestos exposure was not addressed at any point in the report. The report also erroneously stated that the Veteran claimed that drinking contaminated water resulted in asbestos exposure. In fact, the Veteran has asserted that his work as a vehicle technician, and his time aboard ship, were the sources of his in-service asbestos exposure. As to his cardiac claim, the same VA report noted that contaminated water did not result in a current cardiac diagnosis. The opinion was offered as to contaminated water only, and the Board points out that the Veteran's reopened claim also encompasses his original cardiac claim, which is not so limited in scope. As such, the record does not contain an opinion as to whether any current cardiac disorder was incurred in, aggravated during, or otherwise related to the Veteran's military career. In McLendon v. Nicholson, cited several times by the Court within the November 2011 decision, the Court held that the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id, at 83. Pursuant to VA's duty to assist, VA will conduct a search of the Veteran's records in an attempt to determine whether exposure to asbestos occurred during his period of service. Should the RO determine that the Veteran was most likely exposed to asbestos by way of his work as an AmTrac Crewman, or via service aboard ship, the RO may concede such exposure without conducting an extensive search. Thereafter, the Agency of Original Jurisdiction shall obtain a VA pulmonary opinion so as to determine whether the Veteran's current diagnosis of asbestosis, fibrotic scarring, COPD, and/or any other pulmonary disorder is related to his period of military service, to include exposure to asbestos. Further, the RO should request an addendum opinion from the November 2013 VA examiner, so as to explore whether it is at least as likely as not that any current cardiac diagnosis is related to his period of active service, and not exclusively as a result of contaminated drinking water at Camp Lejeune. Finally, the Board points out that the Veteran indicated in September 2006 that he was in receipt of Social Security Administration (SSA) benefits. It is unclear as to whether these are SSA disability benefits, and if so, whether the SSA has records which may be pertinent to the Veteran's claims. As of this date, it does not appear that any such records have been requested, which VA normally has a duty to obtain. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). See also Dixon v. Gober, 14 Vet. App. 168, 171 (2000) and Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). Thus, on remand, the RO/AMC must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records, to the extent available. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request SSA to furnish a copy of its disability determination, as well as copies of all medical records underlying that decision. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The RO/AMC shall attempt to verify the Veteran's claimed in-service asbestos exposure by contacting any relevant records custodian, to include asbestos that may have been contained within AmTrac parts or aboard any ship on which he may have served. Should the RO/AMC concede such exposure, an extensive search may not be necessary on account of the Veteran's advanced age. 3. Upon completion of the above development, the RO/AMC shall schedule the Veteran for a VA respiratory examination so as to determine whether the Veteran has a current respiratory or pulmonary disorder related to exposure to asbestos in service. If the Veteran is unable to report for an examination, an opinion must be obtained from a VA pulmonologist. The Veteran's claims folder must be made available to the examiner for review in conjunction with the opinion. The examiner should specifically review, note, and discuss the Veteran's statements in support of his claim, as well as any confirmed or conceded in-service asbestos exposure, if applicable. In consideration of this and any other evidence or factors deemed relevant, the examiner should address the following question: Whether it is at least as likely as not (at least a 50 percent probability) that any pulmonary disorder is etiologically-related to the Veteran's period of active duty service, to include as the result of asbestos exposure. Why or why not? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Obtain an addendum opinion from the November 2013 examiner to determine whether any current cardiac disorder is related to his period of active service, not to include exposure to contaminated drinking water. Should that examiner not be available, an opinion should be obtained from a VA cardiologist. The Veteran's claims folder must be made available to the examiner for review in conjunction with the opinion. The examiner should specifically review, note, and discuss the Veteran's statements in support of his claim. In consideration of this and any other evidence or factors deemed relevant, the examiner should address the following question: Whether it is at least as likely as not (at least a 50 percent probability) that any current cardiac disorder is etiologically-related to the Veteran's period of active duty service. Why or why not? 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the action taken in the paragraphs above, the claims should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should 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). ______________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs