Citation Nr: 1714657 Decision Date: 05/03/17 Archive Date: 05/11/17 DOCKET NO. 12-22 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an eye disability due to trauma (flash of gunfire) and/or asbestos exposure. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) (claimed as acid reflux of the stomach and throat) as a result of asbestos exposure REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J.Connolly, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1944 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, the RO denied the Veteran's service connection claims for eye damage and acid reflux, to include both as a result of asbestos exposure. In November 2016, the Board remanded this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). 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 the claim of service connection for an eye disability, the Board remanded this case to resolve whether the post-service diagnoses of bilateral nuclear cataracts post-surgery, pterygium and reticular degeneration, are etiologically related to service to include as a result of eye trauma by gunfire flash. In the remand, the Board found that the Veteran was credible in his report of having suffered a gunfire flash injury in service. At this time, the Board further notes that this contention is consistent with his circumstances of service. Although the Veteran was scheduled for a VA examination, he did not report for the examination. However, the medical records reflect that the Veteran is totally disabled and in poor health. The Board finds that even though the Veteran was apparently unable to report for an examination, a medical opinion should be obtained. With regard to his claim for service connection for GERD, following the Board's remand, additional medical records were received which reflected a current diagnosis of GERD. The Veteran is also competent to report symptoms of acid reflux. There is no medical opinion regarding this disability; thus a VA examiner should also address this matter. The Veteran has claimed both disabilities as being the result of inservice asbestos exposure. The Veteran was a machinist mate in the Navy. VA medical records noted a history of asbestos exposure, but it unclear if that was based on a determination by the AOJ. 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. Furthermore, it was revealed that many 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. 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. The Veteran's current claims for eye disability and GERD do not appear to come within the group of disabilities identified above. However, since the Veteran has claimed asbestos exposure, was a ship worker, and VA records noted asbestos exposure, the Board finds that the AOJ should make a determination in that regard and the VA examiner should consider that contention. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. 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. 2. Send the Veteran a letter in compliance with DVB Circular and M21-1, Part VI regarding alleged asbestos exposure. 3. Obtain a VA medical opinion. The examiner should review the record prior to providing an opinion. 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 the Veteran's eye disability to include bilateral nuclear cataracts post-surgery, pterygium and reticular degeneration, had its clinical onset during service or is related to any in-service disease, event, or injury, including asbestos exposure if the AOJ determines that the Veteran had such exposure. The examiner should accept that the Veteran suffered an eye trauma by gunfire flash during service. If the examiner determines that the Veteran currently has refractive error of the eye or any developmental or congenital eye condition, the examiner should indicate if the defect was subjected to a superimposed disease or injury during service (including the gunfire flash) which created additional disability and should identify the nature of any additional disability. 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 the Veteran's GERD had its clinical onset during service or is related to any in-service disease, event, or injury, including asbestos exposure if the AOJ determines that the Veteran had such exposure. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 5. 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). _________________________________________________ M. TENNER 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) (2016).