Citation Nr: 18100422 Decision Date: 04/13/18 Archive Date: 04/13/18 DOCKET NO. 14-17 596 DATE: April 13, 2018 ISSUES DECIDED: 0 ISSUES REMANDED: 1 REMANDED ISSUE The issue of entitlement to service connection for a respiratory disability, including as due to asbestos exposure, is remanded for additional development. The Veteran served on active duty from July 1966 to July 1968. In October 2017, the Veteran presented testimonial evidence at a Board hearing held via videoconferencing equipment before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran claims that he developed a respiratory disability from exposure to asbestos during his active military service. He asserted exposure at Fort Benning, Georgia during basic training, where he allegedly performed significant work in the barracks, including on insulation and additionally testified that he was exposed to asbestos as a cook working with big ovens covered with insulation and in kitchens with big pipes overhead. 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 certain types of 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). In the absence of specific regulations regarding asbestos-related claims, these portions of the M21-1MR are substantive and therefore binding on the Regional Office and the Board. 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. The Veteran’s military service personnel records include a DD-214 form listing the Veteran’s military occupational specialty as “cook. An attempt to verify whether or not the Veteran was likely exposed to asbestos during active duty has not yet been completed. While the RO obtained the Veteran's service personnel and service treatment records, it does not appear that efforts have been made to investigate whether the Veteran's duties during service or the locations where he served would have exposed him to asbestos, as he has asserted. Thus, the RO must ensure appropriate development is accomplished to determine whether the Veteran was exposed to asbestos before, during, and after service, document all steps taken to verify the in-service exposure(s), and make a determination as to whether or not the evidence of record confirms that the Veteran was exposed to asbestos during service. The Veteran has not yet undergone a VA examination or received a VA medical opinion pertaining to this claim, and such is found needed to address the etiology of his current respiratory disorder, given a March 2010 opinion from a private physician linking findings of parenchymal abnormalities consistent with pneumonoconiosis with the Veteran’s alleged asbestos exposure. On remand, a VA examination and medical opinion should be provided. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, at the October 2017 Board hearing, the Veteran testified that he suffers from bronchitis at least twice per year, and that his private doctor, J.H., told him that he thinks it is related to asbestosis. Medical treatment records from J.H. do not appear in the claims file and there is no indication that attempts have been made to request them. On remand, the Agency of Original Jurisdiction should take appropriate steps to request such treatment records. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all relevant treatment records from Dr. J.H. with the J.C.I.M. facility. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. [Note: The Board is using initials to protect the identity of the Veteran. In all correspondence to the Veteran, the full name of the treatment provider and facility (which can be found in the October 2017 Board Hearing transcript) should be used in order to aid him in responding to the request.] 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, assigned duties, and locations of service. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate physician to obtain an opinion as to whether any respiratory disorder is related to the Veteran’s military service. The electronic claims file and a copy of this remand must be reviewed by the examiner. Any indicated diagnostic tests and studies must be performed and all pertinent symptomatology and findings must be reported in detail. The RO should advise the examiner as to its findings pertaining to the Veteran’s asserted in-service exposure to asbestos. The examiner must review and specifically discuss the Veteran's assertions as to his assertions pertaining to asbestos exposure before, during, and after his military service. After a thorough review of the Veteran's electronic claims file and with consideration of the Veteran's statements, the examiner must address the following: a. Identify the diagnosis for any respiratory disability present at any time during the relevant appeal period (August 2012 to present); In responding to the above, the examiner’s attention is directed to a March 2010 statement provided by the Veteran’s private physician, and to the Veteran’s October 2017 testimony that he suffers from bronchitis at least twice per year. b. For any diagnosis identified above, provide an opinion as to whether it is at least as likely as not related to his military service, to include as due to any asbestos exposure verified by the RO. 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. If the examiner is unable to render an opinion, he or she must indicate whether such inability is due to limitations of knowledge in the medical community at large or those of the particular examiner. 4. Thereafter, review the examination report to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel