Citation Nr: 1619017 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 15-12 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a respiratory disorder, including asbestosis, to include as due to exposure to asbestos. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active military duty from September 1959 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). REMAND The Veteran claims that he developed a respiratory disorder, including asthma and asbestosis, from in-service exposure to asbestos. He asserts that he was exposed during his service in Germany from May 1960 to August 1961, when he drove a fork lift stacking and shipping in the General Depot, Nahbollenbach. He further explained that he was exposed to asbestos from the roof construction, as well as the walls of the offices in the warehouse, where he was stationed in Nahbollenback, Germany. 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, the manual 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. M21-1MR IV.ii.2.C.9.h. These guidelines provide 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). M21-1MR IV.ii.2.C.9.d. VA also 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, larynx, pharynx, and urogenital system (except the prostate). M21-1MR IV.ii.2.C.9.b. VA's Manual also lists some of the common materials that may contain asbestos, including steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire proofing materials, and thermal insulation. M21-1MR IV.ii.2.C.9.a. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR IV.ii.2.C.9.f. Review of the evidence of record shows that a sufficient attempt to verify whether or not the Veteran was likely exposed to asbestos during his service has not yet been completed. While the RO obtained the Veteran's service personnel records and attempted to verify his claimed asbestos exposure by requesting this information via the Personnel Information Exchange System (PIES) in December 2013, it appears no response was received. No other efforts have been undertaken to investigate whether the Veteran's duties during service or the locations where he served would have exposed him to asbestos. Indeed, the available service records show he was a supply clerk, (related civilian occupation was shipping clerk). He was stationed in Bremerhaven, Germany, from March 1960 to August 1961 with the 85th QM Co (Dep) (C&GS) APO 34. There has been no investigation regarding the source of asbestos exposure claimed by the Veteran to have occurred during this assignment. Thus, the RO must investigate the Veteran's claimed exposure to asbestos, as well as document all steps taken to verify any exposure. Efforts must also be made to obtain outstanding VA and private medical records pertinent to the claim. The March 2015 statement of the case indicates that VA treatment records from the San Juan VA Medical Center, including satellite facilities, dated between February 2003 and April 2014 were reviewed and considered in the rating, but these records have not been associated with the Veteran's electronic claims file and thus, were unavailable for the Board's review. The Veteran indicated on VA Form 21-4142, Authorization and Consent to Release Information to VA, that he treated for asthma and asbestosis from Pulmonary Diseases and Critical Care and Dr. ADB every to two or three months from February 2002 to the present. There are only sporadic records for these providers for this time period associated with the record. As numerous private and VA medical records remain outstanding, a remand is required in order for the RO to obtain this evidence and associate it with the virtual record. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, there is no medical opinion of record that addresses the relationship, if any, between the Veteran's respiratory disorders, variously diagnosed as asthma, chronic obstructive pulmonary disease, interstitial lung disease, and pulmonary asbestosis, and his military service, to include any asbestos exposures therein. A September 1999 occupational lung disease evaluation also shows post-service asbestos exposure. This claim presents certain medical questions concerning medical nexus that cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). As such, a VA medical opinion must be obtained. 38 C.F.R. § 3.159(c)(4)(2015) (finding that a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is remanded for the following action: 1. The RO must obtain and associate with the virtual record all outstanding records relevant to the claim on appeal, to include private treatment records from Pulmonary Diseases and Critical Care and Dr. ADB dated from February 2002 to the present. The Veteran reports private treatment every two to three months during this timeframe, and all VA treatment records dated from February 2003 to the present. All attempts to secure this evidence must be documented in the record by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran must then be given an opportunity to respond. 2. The RO must take appropriate action to develop evidence of whether the Veteran was exposed to asbestos during service, to include requesting information from the appropriate resources regarding his military occupational specialty(ies), assigned duties, and locations of service, particularly while stationed in Bremerhaven, Germany, from March 1960 to August 1961 with the 85th QM Co (Dep) (C&GS) APO 34. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29; Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9. 3. Thereafter, the RO must obtain a VA medical opinion from an appropriate physician regarding whether the Veteran's claimed respiratory disorder is related to his military service. The electronic claims file and a copy of this remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must review and specifically discuss the Veteran's assertions as to in-service asbestos exposure. The examiner must also comment on post-service asbestos exposure identified in a September 13, 1999, occupational lung disease evaluation. After a thorough review of the Veteran's electronic claims file and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any currently or previously diagnosed respiratory disorder is related to his military service, to include as due to asbestos exposure. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After the development requested has been completed, the RO must review the medical opinion to ensure that it is in complete compliance with the directives of this Remand. If the medical opinion is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim of entitlement to service connection for a respiratory disorder, including asbestosis, to include as due to exposure to asbestos. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2015).