Citation Nr: 1806457	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-03 556	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to service connection for ischemic heart disease, to include herbicide exposure.

2. Entitlement to service connection for diabetes mellitus, to include herbicide exposure.

3. Entitlement to service connection for asbestosis.


ORDER

Entitlement to service connection for ischemic heart disease is denied.

Entitlement to service connection for diabetes mellitus is denied.



FINDINGS OF FACT

1. The preponderance of the evidence of record is against a finding that the Veteran's heart condition is causally related to, or was aggravated by his military service, to include herbicide exposure.

2. The preponderance of the evidence of record is against a finding that the Veteran's diabetes mellitus is causally related to, or was aggravated by his military service, to include herbicide exposure.


CONCLUSIONS OF LAW

1. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154 (West 2014); 38 C.F.R. § 3.7, 3.303, 3.304, 3.307, 3.309 (2017).

2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154 (West 2014); 38 C.F.R. § 3.7, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1968 until February 1969.

This case comes before the Board of Veterans' Appeals (Board) on appeal from the January 2011 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Pittsburgh, Pennsylvania Regional Office (RO).

The Veteran testified before the Board at November 2017 hearing in Washington, D. C. A transcript of the hearing is of record.

The issue of entitlement to service connection for asbestosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Entitlement to service connection for ischemic heart disease and diabetes mellitus

The Veteran contends that he has ischemic heart disease and diabetes mellitus related to his service aboard Merchant Marine ships. (See Hearing Transcript page 8 and 13). The Veteran asserts that while serving with the Merchant Marines he was exposed to herbicides, such as Agent Orange. The Veteran contends that his Merchant Marine service should be considered active military service for VA purposes; and thus he should be entitled to service connection on a presumptive basis. For the reasons below, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's claimed ischemic heart disease and diabetes mellitus are causally related to, or was aggravated by his active military service.

As noted above, the Veteran served on active duty from July 1968 until February 1969 with the United States Navy. The claims folder does not reflect nor does the Veteran assert that he was exposed to herbicides during his service with the US Navy. Rather, the Veteran contends that he had service in the Republic of Vietnam with the Merchant Marines from January 1970 until May 1970. (See Hearing Transcript page 8).The Veteran contends that during his service with the Merchant Marines he was exposed to herbicides.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (24). 

Under Public Law No. 95-202, § 401, 91 Stat. 1433, 1449-50 (Nov. 23, 1977), the service of certain groups who rendered service to the Armed Forces of the United States shall be considered "active duty for the purposes of all laws administered by the Secretary of Veterans Affairs" if the Secretary of Defense designates the group for such consideration based upon the factors listed in the statute. Pursuant to that statute, the Secretary of Defense promulgated regulations establishing detailed criteria by which to determine whether a group qualifies for consideration as active duty under the Public Law, and delegating to the Secretary of the Air Force the power to determine whether specific groups so qualify. In accordance therewith, the Secretary of the Air Force determined that the service of American Merchant Marines in Oceangoing Service, as well as Civil Service crew members aboard US Army Transport Service and Naval Transportation Service vessels, during the period from December 7, 1941, to August 15, 1945, will be considered active duty. See 53 Fed. Reg. 2775 (1988); see also 38 C.F.R. § 3.7 (x)(15) (2017) (certifying as "active military service" the service of American Merchant Marines in Oceangoing Service during the period from December 7, 1941, to August 15, 1945); Pacheco v. West, 12 Vet. App. 36, 37 (1998). 

Under 38 C.F.R. § 3.7, active military service for individuals in the American Merchant Marine includes only oceangoing service during periods of armed conflict from December 7, 1941, to August 15, 1945. 38 C.F.R. § 3.7 (x)(14), (15). Specifically, United States Merchant Seamen who served on blockade ships in support of Operation Mulberry during World War II and American Merchant Marines who were in Oceangoing Service during the period of armed conflict from December 7, 1941, through August 15, 1945, are considered to have had active service. In this case, the Veteran was a Merchant Marine from January 1970 until May 1970, which is not during a time period wherein Merchant Marine service has been determined to be active duty for the purposes of all laws administered by the Secretary of Veterans Affairs. Thus, service connection cannot be established based on his service in the Merchant Marines.

There is no evidence of record exposure to an herbicide agent during active service, either actual or presumed.  It is neither asserted nor shown that diabetes mellitus or ischemic heart disease were incurred during service or are otherwise related to service.

 The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


REMAND

Regrettably, the Board finds that additional development is required regarding the Veteran's claims, as will be discussed below.

Regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations. VA has issued a circular on asbestos-related diseases, however. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). 

VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, essentially 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).  

With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). 

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Regarding the claim of entitlement to service connection for asbestosis, the Veteran claims that his respiratory conditions are caused by in-service exposure to asbestos. Firstly, the Board concedes that the Veteran had some exposure to asbestos during his active Navy service. The Veteran had active naval service from July 1968 until February 1969; with some service taking place aboard a naval ship (USS Vermilion). Thus, the Veteran must be afforded a VA examination to determine if any current respiratory disability is caused by in-service asbestos exposure. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Accordingly, the case is REMANDED for the following action:

1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his claimed lung condition, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file.

2. Schedule the Veteran for a VA respiratory examination by a Pulmonologist. The claims file and a copy of this remand must be provided to the examiner. The examiner must indicate receipt and review of these documents in any report generated. 

For any respiratory illness present, the physician is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's respiratory condition is related to, or aggravated by, his military service, including inservice exposure to asbestos.

Provide supporting rationale, with specific references to the record, for the opinions provided; moreover, if the examiner finds that the inquiries cannot be answered without resorting to speculation, then it must be explained why it would be speculative to respond.

3. After completion of the above requested development, and any other development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case, and afford them the opportunity to respond before the claims file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2014).



______________________________________________
M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	Brandon A. Williams, Associate Counsel

Copy mailed to:  [Disabled American Veterans]


Department of Veterans Affairs