Citation Nr: 1431429 Decision Date: 07/14/14 Archive Date: 07/22/14 DOCKET NO. 10-32 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD M. R. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to June 1955 and had service in the Navy/Naval Reserves from July 1979 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver Colorado, which, in pertinent part, denied entitlement to service connection for asbestosis. The Veteran's Virtual VA and VBMS files were reviewed in connection with this decision. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he was exposed to asbestos in service while in the Navy and that he currently has asbestosis as a result. He has alleged that he spent 14 years in the Navy, and that, during his period as a Boatswain's Mate, he performed rigging which involved tearing apart pipes wrapped asbestos material which would come loose. The Veteran estimated that he performed this function for four years. See August 2010 Form 9. A letter was submitted from the Navy Operational Support Center in August 2010, confirming that the Veteran served in the Navy from July 1979 to August 1993, and that he likely performed rigging of asbestos filled pipes as a boatswain. The Veteran's service personnel records are not part of the record. As the nature of his service in the Navy is unclear, these records should be obtained and associated with the file. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In a May 2012 statement, the Veteran indicated that he was in receipt of ongoing treatment from the VA for his lung condition. The most recent VA medical records in evidence are from September 2012. As such, current VA medical records should be obtained and associated with the claims file. It appears that the Veteran was granted Social Security Administration (SSA) disability benefits in 1993. See service treatment records from Naval Reserve Service. When VA has actual notice of the existence of records held by SSA that appear relevant to the claim before VA, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Here, as it is unclear whether these records are relevant to the claim, the records should be obtained. 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 provided guidelines for the adjudication of asbestos exposure claims in the VA 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 is unclear whether the RO has followed these guidelines in this case. The record includes a September 2009 Personnel Information Exchange System (PIES) request for records of exposure to asbestos in service or jobs that the Veteran performed; however, it is unclear whether there was a response to this request. On remand, the response should be associated with the claims file. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. In this case, the August 2010 letter reflects the writer's opinion that the Veteran's asbestosis is more than likely due to his in-service asbestos exposure. However, it does not appear that this individual is a medical professional. In addition, the record of evidence includes a letter from a private physician, P.A.P., M.D., FACP, FCPP, who diagnosed the Veteran with asbestosis and linked it to his period of employment while working for steel mills; however, this private physician did not address any in-service exposure to asbestos. On remand, if the Veteran's service personnel records confirm his contentions of exposure to asbestos while in service, the Veteran should be provided with a VA examination to determine whether his current asbestosis is linked to asbestos exposure in service. The examiner should be provided with the M21-1R guidelines for review in providing the opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service personnel records from his time in the Navy/Naval Reserves from July 1979 to August 1993, and associate these with the record. 2. Obtain all records of treatment related to the Veteran's lung disorder from the VA, including, but not limited to since September 2012. 3. Obtain the Veteran's SSA records and all associated medical records from his application in 1992. 4. Obtain a response to the September 2009 PIES request (or submit a new request) as to whether the Veteran had exposure to asbestos while on active duty. 5. If the Veteran's reports of in-service exposure to asbestos are confirmed through service personnel records and his lay statements of record, schedule him for a VA examination to determine the etiology of asbestosis. All indicated tests and studies should be conducted. The claims folder, including this remand, any records in the VBMS or Virtual VA systems, and the guidelines for claims based on asbestos exposure set out in the VA Adjudication Procedure Manual M21-1R must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's asbestosis was caused by or is etiologically related to any incident of active duty, including his reported exposure to asbestos while in the Navy. The examiner must address the provisions set out in the VA Adjudication Procedure Manual M21-1R, which 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). The examiner must also address the Veteran's reported exposure to asbestos in his non-military employment. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 6. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ J.A. MARKEY 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).