Citation Nr: 1549347 Decision Date: 11/23/15 Archive Date: 11/25/15 DOCKET NO. 14-09 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure and/or exposure to lead-based paint. 2. Entitlement to service connection for a heart disability, to include as due to herbicide exposure and/or exposure to lead-based paint. 3. Entitlement to service connection for hypertension, to include as due to herbicide exposure and/or exposure to lead-based paint. 4. Entitlement to service connection for enlarged prostate, to include as due to herbicide exposure and/or exposure to lead-based paint. 5. Entitlement to service connection for a respiratory disorder, to include as due to exposure to asbestos and/or exposure to lead-based paint. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Herbicide Exposure The Veteran's service personnel records reflect that he served aboard the U.S.S. Allen M. Sumner. In September 2011, the National Personnel Records Center (NPRC) confirmed that this ship was located in the official waters of the Republic of Vietnam on six different occasions while the Veteran was aboard, sometimes for as long as one month at a time. According to a July 2013 memorandum, the Joint Services Records Research Center (JSRRC) found that there was a lack of information required to verify service in the Republic of Vietnam or exposure to herbicides during military service. In a September 2011 statement, the Veteran reported that he was exposed to Agent Orange when the ship was docked and he went inland to take supplies. The Veteran's DD-214 lists a military occupational specialty (MOS) of "SK" or "storekeeper." The Veteran has asserted that he went ashore to Vietnam for supplies. However, he did not provide any other details, such as which harbor(s) the ship anchored in, or which date(s) he went ashore, or how many times and under what circumstances he went ashore. There are not enough details available at present for the Board to weigh the Veteran's lay assertions. On remand, the Veteran should be afforded the opportunity to submit additional details from himself and/or from other individuals who either served with him directly or who knew him during his period of active duty, in order to provide further information regarding the circumstances under which the Veteran went ashore to Vietnam. Of the Veteran's claimed conditions, diabetes mellitus and ischemic heart disease are among the diseases listed under 38 C.F.R. § 3.309(e) to which the presumption of service connection based on exposure to herbicides is available. The conditions of enlarged prostate and hypertension are not listed under 38 C.F.R. § 3.309(e). Nevertheless, the Veteran is not precluded from demonstrating that his enlarged prostate and hypertension are directly attributable to his herbicide exposure or to some other incident of his military service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). To that end, any additional details he can provide concerning the dates and circumstances of any visitations to Vietnam from the U.S.S. Sumner would be directly relevant to these claims. Asbestos Exposure Regarding the Veteran's service connection claim for a respiratory disorder based on exposure to asbestos, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases, which has been incorporated into the VA Adjudication Procedure Manual. See DVB CIRCULAR 21-88-8, Asbestos-Related Diseases (May 11, 1998); VA Adjudication Procedure Manual Rewrite M21-1MR (M21-1MR), Part IV, Subpart ii, Chapter 1, Section I, Subsection 3, and Chapter 2, Section C, Subsection 2, effective from August 7, 2015. The provisions stipulate that VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational and other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See also Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). M21-1MR, IV.ii.2.C.2.f. The M21-1 MR includes an MOS Handout to Determine Probability of In-Service Asbestos Exposure. See M21-1 MR, Part VI, Subpart ii, Chapter 1, Section I, Subsection 3(c). According to this guidance, the probability of asbestos exposure for those with an MOS of storekeeper was "minimal." Subsection 3(e) of the same chapter and section provides that if the probability of asbestos exposure is minimal or higher, a VA medical opinion is needed. In this case, while the Veteran was afforded a VA respiratory conditions examination in January 2013, the examiner did not address asbestos exposure, and what effect, if any, such exposure may have had on the Veteran's current respiratory disorder(s). Therefore, an addendum VA medical opinion is needed to directly address whether it is at least as likely as not that any currently-diagnosed respiratory disorder is related to asbestos exposure in service. The Board also notes that a private diagnostic test from August 2010 revealed "evidence of chronic bronchopulmonary disease with likely interstitial fibrosis as well as emphysematous changes in both lower lungs. Correlation as to acuity is recommended but this is likely due to chronic disease." The January 2013 VA examination report did not address this finding, and the Board notes that interstitial fibrosis is among the conditions listed in the M21-1 MR as potentially being caused by inhalation of asbestos fibers. See Part VI, Subpart ii, Chapter 2, Section C, Subsection 2(b). Thus, the addendum VA medical opinion must also address the August 2010 private diagnostic findings. Lead-Based Paint Exposure In the Veteran's March 2014 substantive appeal, he raised a new theory of entitlement to all issues on appeal on the basis of exposure to lead-based paint through his painting of the ship during active service. To date, the RO has not considered this new theory of entitlement based on exposure to lead-based paint in service. Given that this theory of entitlement has not yet been addressed by the Agency of Original Jurisdiction (AOJ), and given that all of the issues currently on appeal must be remanded for the reasons discussed above, the RO should specifically address the Veteran's assertions of exposure to lead-based paint in service before the case returns to the Board. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of, the circumstances under which he went ashore to Vietnam, including the approximate dates and locations of such visitations, and any other pertinent details regarding his activities there. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Forward the claims file to the medical examiner who prepared the January 2013 VA respiratory disorders examination report, or if that examiner is unavailable, to a suitable replacement, for the preparation of an addendum opinion. If the examiner determines that a new VA examination is necessary, one should be scheduled. The examiner must provide an opinion as to whether it is at least as likely as not that any diagnosed respiratory disorder is related to asbestos exposure from active service. In forming this opinion, the examiner should address the following: * Private diagnostic test results from August 2010 revealing "evidence of chronic bronchopulmonary disease with likely interstitial fibrosis as well as emphysematous changes in both lower lungs. Correlation as to acuity is recommended but this is likely due to chronic disease." * DD-214 listing an MOS of "SK" (storekeeper), which the M21-1 MR indicates as having a "minimal" probability of asbestos exposure. See Part VI, Subpart ii, Chapter 1, Section I, Subsection 3(c). A complete explanation must be provided for any opinion expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, the RO should undertake any additional development deemed appropriate to readjudicate the appeal, including consideration in the first instance of the Veteran's assertions of exposure to lead-based paint in service as a cause of all the disabilities currently on appeal. If any benefit sought remains denied, furnish the Veteran and his representative an SSOC and return the case to the Board. 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 2014). _________________________________________________ STEVEN D. REISS 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).