Citation Nr: 1525351 Decision Date: 06/12/15 Archive Date: 06/19/15 DOCKET NO. 10-03 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include as secondary to radiation exposure and/or asbestos exposure. 2. Entitlement to service connection for hypertension, to include as secondary to radiation exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from September 1974 to September 1977. These matters come before the Board of Veteran's Appeals (Board) from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In July 2012, the Veteran testified at a Travel Board hearing before the undersigned at the RO. In February 2014, the Board denied service connection for hypertension and remanded the issue of entitlement to service connection for a respiratory disability. The Veteran appealed the Board's February 2014 denial of service connection for hypertension to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a March 2015 Order, vacated the Board's February 2014 decision as to the denial of the issue of service connection for hypertension and remanded the matter to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to a respiratory disorder, the Board previously noted in the February 2014 decision that the Veteran's August 1977 Army Certificate of Achievement confirmed that he was assigned to Enewetak Atoll from May 31, 1977 to June 15, 1977 and that he performed "clean-up" operations of a "former nuclear test site" at that time. The Veteran asserts that he has a respiratory disability as a result of exposure to radiation while serving at Enewetak Atoll. As noted by the Board, his respiratory disability is not among the diseases subject to presumptive service connection under 38 C.F.R. § 3.309(d)(2) and is also not among those disorders classified as a radiogenic disease under 38 C.F.R. § 3.311(b)(2) (i-xxiv). However, the Board previously indicated that the Veteran's respiratory disability may nevertheless be secondary to radiation exposure during his duty at Enewetak Atoll. Based on the foregoing, the Board determined that the Veteran's claim should be forwarded to the Under Secretary for Benefits for further consideration of the Veteran's respiratory disability as directed under 38 C.F.R. § 3.311(c). In September 2014, a letter was sent to the Director of Compensation Service regarding the referral to the Under Secretary for Health regarding 38 CFR 3.311(c) per the Board's February 2014 remand. In the interim and before the case had been considered by the Under Secretary for Health on the respiratory issue, the Veteran appealed the denial of service connection for hypertension to the Court. Per the JMR, the case was returned to the Board. The JMR noted that the Veteran's statement that he was told that he had hypertension by a medical provider within one year of service was not adequately considered since he is competent to make that type of statement. Moreover, the issue of service connection for hypertension was intertwined with the issue of service connection for a respiratory disability (on remand) because the Veteran also contends that the hypertension was related to claimed inservice radiation exposure. While hypertension is also not a presumptive disorder under 38 C.F.R. § 3.309(d)(2) and is not among those disorders classified as a radiogenic disease under 38 C.F.R. § 3.311(b)(2) (i-xxiv), similar to the respiratory disability, direct service connection is not precluded under Combee v. Brown, 34 F.3d at 1039, 1043 (Fed.Cir.1994). Thus, that matter must also be addressed by the Under Secretary for Health. The Board further notes that with regard to a respiratory disability, the complete records of Dr. Vrooman should be requested. Also, the record suggests that the Veteran was exposed to asbestos and has, among his respiratory diagnoses, a diagnosis of acute asbestos pleurisy. It is unclear if any asbestos exposure took place during service or if all exposure occurred post-service. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, 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 were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is 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 Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10-to-45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. Lastly, due to the assertions that direct service connection is warranted, the Board finds that the Veteran should be examined by VA with regard to both claimed disabilities since an examination has not been conducted. Accordingly, the case is REMANDED for the following action: 1. After securing the appropriate medical release, obtain and associate with the record copies of all clinical records, which are not already in the record, of the Veteran's treatment by Dr. Vrooman. The RO/AMC must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 2. Conduct appropriate development, as mandated by the VA Adjudication Procedure Manual, to verify any potential exposure to asbestos during the Veteran's service. A formal finding should be issued regarding the likelihood that the Veteran was exposed to asbestos during his active service. The finding should include a rationale and should be associated with the record. 3. Send the Veteran a letter in compliance with DVB Circular and M21-1, Part VI regarding alleged asbestos exposure. 4. Schedule the Veteran for a respiratory examination. The record must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current respiratory disability had its clinical onset during service or is related to any in-service disease, event, or injury, to include any asbestos exposure during service. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of any current hypertension disability. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current hypertension had its clinical onset during service or within one year of service or is related to any in-service disease, event, or injury. The examiner should consider the Veteran's report that he was told by a medical provider that he had hypertension in 1978, within one year of service separation. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 6. Continue the development with regard to a referral to the Under Secretary for Benefits for an opinion under 38 C.F.R. § 3.311(c) regarding whether it is at least as likely as not that the Veteran has a respiratory disability as well as hypertension related to radiation exposure during service. 7. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran 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 2014). _________________________________________________ D.C. Spickler Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).