Citation Nr: 1424817 Decision Date: 06/03/14 Archive Date: 06/16/14 DOCKET NO. 11-15 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a skin disorder. 2. Entitlement to service connection for a respiratory disorder, claimed as due to exposure to asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which continued a 10 percent rating for a skin disorder and confirmed a May 2008 denial of service connection for breathing problems. The Board has recharacterized the issue of breathing problems as entitlement to service connection for a respiratory disorder, claimed as due to exposure to asbestos. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that, in addition to the paper claims file, it has reviewed the paperless, electronic claims file associated with the Veteran's claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND First, the Veteran essentially contends that he has a respiratory disorder due to in-service asbestos exposure, which has led to calcified pleural plaques. Personnel records show that the Veteran was a shipfitter and was assigned to the pipe shop where his duties included installing and repairing the ship's piping systems. The Veteran also submitted buddy statements in October 2008 saying that the Veteran was in charge of installing, repairing, and replacing asbestos lagging. Private treatment records show x-rays confirming pleural plaques. The Veteran's private pulmonologist, Dr. S.F.W. found in February 2005 that the Veteran had chronic dyspnea (trouble breathing). He ruled out asthma and hypothyroidism, or any cardiac explanation, as well as interstitial lung disease. The clinician also stated in a July 2008 report that the Veteran has calcified pleural plaques due to asbestos exposure, but with no evidence of asbestosis of other asbestos-related diseases. It is unclear whether the pleural plaques constitute a medical finding or an actual diagnosis of a disease or disorder. 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). However, VA has 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. The VA General Counsel has held that 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). 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, 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. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in- service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. As the Veteran has documented calcified pleural plaques and possible exposure to asbestos during service, the Board finds that the Veteran should be afforded a VA examination to determine the etiology of any respiratory disorder, including whether it is related to asbestos exposure in service. The Veteran also contends that his skin disorder is more disabling than currently contemplated by a 10 percent rating, and that VA has not properly taken into account the Veteran's symptoms during his flare ups. The Veteran was seen for a VA examination in April 2008. The examiner ultimately noted that there was tinea versicolor on 5 percent of unexposed skin area and 0 percent of exposed area. In a July 2008 visit to the VAMC, the Veteran came in for an evaluation of rash on his trunk, groin and feet that had been present for six weeks. The Veteran stated the rash flares up in the summer months and was often pruritic (itchy). The clinician noted that the chest, abdomen, and back had 2-3 mm erythematous papules, too numerous to count, with white scales; and the inner thighs and groin had erythematous, well-demarcated scaling patches 5 cm in diameter. There were also white scales present on the soles of the Veteran's feet. In the Veteran's July 2008 claim for an increased initial rating he contended that his rash had grown to 50 percent of his total skin area since his April 2008 examination, due to the warm weather. The Veteran was seen a month later in August 2008 for VA examination. The examiner noted the Veteran had 0.5 to 1 cm of erythematous papules with white scales noted on the upper chest extending up to the neck, across the mid- back, resolved areas in the groin bilaterally, and scant across the antecubital crease, with demarcated scaly patches located on the right mid sole of the foot. The examiner noted the Veteran's condition from the July 2008 VAMC visit and stated that approximately one month later there was slight improvement, with the groin and foot rashes resolved. The examiner ultimately stated that currently tinea versicolor was on 10 percent of unexposed skin, and 0 percent of exposed skin, totaling coverage of 10 percent of the skin. The Veteran and his representative contend in the May 2014 that the last VA examiner from August 2008 did not acknowledge the Veteran's flare ups that are productive of increased body area involvement. The Board recognizes that the Veteran's skin disorder may be cyclical or intermittent in nature. In view of the time that has passed since the Veteran's last VA skin examination, and in view of the Veteran's statements regarding his flare ups, the Veteran should be scheduled for a new VA skin examination to determine the current severity of his skin disorder. The new VA skin examination should be scheduled if possible to take place during the summer, when the Veteran's condition is likely to be active and at its most severe. Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (stating that where the appellant's condition is subject to active and inactive stages (skin conditions generally), an examination should be conducted during the active stage). Accordingly, the case is REMANDED for the following actions: 1. The Veteran is requested to provide a list of his employers since his separation from service, complete with the addresses, dates of employment, his job title, and a list of all chemicals or asbestos to which he was exposed during each period of employment. 2. The AMC/RO should review the claims file and ensure that all notification and development action outlined by The VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 concerning asbestos are fully complied with and satisfied. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Thereafter, the record should be reviewed and specific determinations provided as to whether the military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. 4. After completion of the directives above, schedule the Veteran for a VA respiratory disorders examination. All necessary testing must be accomplished. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosable respiratory disorders, and for each opine as to whether it is at least as likely as not such is caused or aggravated by service. The examiner should specifically discuss: (i) Whether observation of calcified pleural plaques constitutes a diagnosis of a disability and not merely a medical finding. (ii) The role, if any, of exposure to asbestos from working on pipe installation during service in the development of any current disorders. A full and complete rationale for any opinions expressed is required. 5. The Veteran should also be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of his service-connected skin disorder, including tinea versicolor. All necessary testing must be accomplished. The claims folder must be reviewed in conjunction with the examination. If possible, the examination should be scheduled during a flare up of the Veteran's skin condition. The examining facility should be fully informed of the unusual requirements in this case and communicate with the Veteran as necessary to maximize the likelihood of performing the examination during a flare-up of the claimed condition. See Ardison, supra. If it is not possible to schedule the Veteran for a VA examination during a period of flare up, the examiner should document the Veteran's symptoms based on his description of symptoms during a period of flare up. A full and complete rationale for any opinions expressed is required. 6. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).