Citation Nr: 1451296 Decision Date: 11/19/14 Archive Date: 11/26/14 DOCKET NO. 12-19 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The appellant is surviving spouse of the Veteran. The Veteran had active military service from March 1960 to April 1962. This case comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Subsequently, jurisdiction over this claim has been transferred to the RO in Muskogee, Oklahoma. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Appellant claims entitlement to service connection for the cause of the Veteran's death. She specifically argues that the Veteran was exposed to asbestos in service, which was a contributing factor to his death. 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). 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. In the present case, the appellant has asserted that the Veteran was exposed to asbestos while in the Air Force around March 1960-March 1962 when he was a power production operator overseeing wells and pumps. An October 2008 radiographic study reflected "possible pleural thickening or pleural effusion on the left is very small." 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. 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 Appellant is requested to provide a list of the Veteran's 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 cannot be obtained, a notation to that effect should be inserted in the file. The appellant must be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. Thereafter, obtain a medical opinion from an appropriate VA medical facility should be obtained. The claims folder and all pertinent records from Virtual VA and/or VBMS files must be made available for the examiner'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. Based on a review of the claims file, the examiner must state whether it is at least as likely as not. (i.e., a probability of 50 percent or greater), that the Veteran's pulmonary disorder is related to his active duty service or is otherwise etiologically related to his period of service, to include exposure to asbestos. A complete a fully reasoned rationale must be provided for any opinion offered. 4. After completion of the above development, the claim should be re-adjudicated. If the determination remains unfavorable, the appellant and her representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. 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. 2014). ____________________________________________ H. SEESEL 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) (2014).