Citation Nr: 19114020
Decision Date: 02/26/19	Archive Date: 02/26/19

DOCKET NO. 15-35 666
DATE:	February 26, 2019

ISSUES

1. Entitlement to service connection for a back disability.

2. Entitlement to service connection for a respiratory disability.

3. Entitlement to service connection for carpal tunnel syndrome (CTS).

4. Entitlement to service connection for a heart disability.

5. Entitlement to service connection for fibromyalgia.

6. Entitlement to service connection for a bilateral hip disability.

7. Entitlement to service connection for a bilateral knee disability.

REMANDED

Entitlement to service connection for a back disability is remanded.

Entitlement to service connection for a respiratory disability is remanded.

Entitlement to service connection for CTS is remanded.

Entitlement to service connection for a heart disability is remanded.

Entitlement to service connection for fibromyalgia is remanded.

Entitlement to service connection for a bilateral hip disability is remanded.

Entitlement to service connection for a bilateral knee disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1981 to March 1984. This case comes to 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 New Orleans, Louisiana. 

The Veteran testified before the undersigned during an August 2018 travel Board hearing. A copy of the transcript is of record.

The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. At the outset, the Board notes that the Veteran’s service treatment and personnel records are unavailable for review. Under such circumstances VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

The Veteran asserts, and testified before the undersigned, that service connection is warranted for the disabilities on appeal as related to an in-service accident in which he was run over by a forklift that was operated by a drunk driver. The Veteran also claims exposure to asbestos, that he fell from a flight deck on to an elevator, that he fell through a catwalk light trap door that was broken, and fell down a 10-foot ladder. He also testified that he was aboard the USS Saratoga during the Ship Life Extension Plan (SLEP) in which the ship was gutted and refitted with new engines, new propellers, new kitchens, new berthing compartments, sleeping beds and more. He stated that he was on fire watch and that the ship was full of asbestos.

A January 2019 response from the Center for Unit Records Research (CURR) stated that from January to August 1981 the USS Saratoga was out of commission while undergoing a SLEP at the Philadelphia shipyard. The deck logs were unavailable, and it was recommended that the National Archives and Records Administration (NARA) be contacted directly. This directive has not been accomplished by the RO; as such, the Board finds that this request should be performed on remand.

There is no specific statutory or regulatory guidance with regard to asbestos-related diseases. See McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran’s Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB Circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. [This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, available at www.benefits.va.gov/WARMS/docs/.../m21_1/mr/part4/.../M21-1MRIV_ii_2_secC.doc]. See also VAOPGCPREC 4-00 (Apr. 13, 2000). 

The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce: fibrosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; and cancers of the lungs, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (but not the prostate). See Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In asbestos exposure claims, if the Veteran has a military occupational specialty (MOS) that is associated with minimal, probable, or highly probable exposure to asbestos, and there is evidence of a current diagnosed disability, then an examination is warranted to determine the etiology of the disability. See VA Adjudication Procedures Manual (M21-1), Part IV, Subpart ii, Chapter 1, Section I, Topic 3.

The Veteran’s DD Form 214 shows that he served aboard the USS Saratoga with two years, seven months and 19 days of sea service. It appears that his military occupational specialty (MOS) was Navy Aviation Boatswains Mate, Handling (ABH). To this point, the Veteran testified before the undersigned that in service he worked crash and salvage on the flight deck of an aircraft carrier which is consistent with this MOS. An MOS of ABH is associated with probable exposure to asbestos. See M21-1, Part IV, Subpart ii, Chapter 1, Section I, Topic 3.

The Board finds that the Veteran had a probable likelihood of asbestos exposure during service as he served on the USS Saratoga and was an ABH, a naval occupation associated with probable asbestos exposure. As such, the Board finds that the Veteran was exposed to asbestos in service.

The Board notes that VA treatment records show diagnoses to include bronchitis, chronic obstructive pulmonary disease (COPD), asthma, allergic rhinitis, angina, and fibromyalgia. Private treatment records also show diagnoses of spondylosis of the lumbar region, lumbar degenerative disc disease, lung disease, emphysema, heart disease, piriformis syndrome, generalized osteoarthritis, minimal degenerative arthritis in both hips, and osteoarthritis of the knee.

The Veteran has not been afforded a VA examination to address the etiology of the claimed disabilities on appeal. As such, the Board finds that the Veteran should be afforded VA examination(s) on remand.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

The Board notes that the evidence of record and testimony by the Veteran indicates that there are outstanding records. To this point, the Veteran testified that he was awarded Social Security Administration (SSA) benefits. VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 U.S.C. § 5103A (c)(3); 38 C.F.R. § 3.159 (c)(2); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran also testified that he was treated at the Philadelphia Naval Hospital after the forklift accident and later at Saint Anne’s hospital. He also stated in his July 2012 claim for benefits that he was treated at Saint Mary’s or Saint Vincent’s hospital. He also stated that he was treated at a hospital in Roosevelt “Rosie” Roads, Puerto Rico, after passing out and falling off a firetruck. Finally, in November 2018 the RO received a medical records request rejection notice from the New Orleans VA hospital; there is no indication that a subsequent request was made. As such, these records should be sought on remand.

The matters are REMANDED for the following action:

1. Obtain and associate with the electronic claims file the following outstanding records:

a)	Deck logs for the USS Saratoga from NARA as indicated above;

b)	SSA records, to include complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim; 

c)	VA treatment records; 

d)	Philadelphia Naval Hospital records;

e)	Saint Mary’s hospital records;

f)	Saint Vincent’s hospital records;

g)	Roosevelt “Rosie” Roads, Puerto Rico, hospital records;

h)	New Orleans VA hospital records;

i)	and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims.  

The Veteran and his representative are to be notified of any unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit any such records for VA review. 

2. After the above development is completed, schedule the Veteran for VA examination(s) to determine the nature and etiology of his claimed back disability, respiratory disability, CTS, heart disability, fibromyalgia, bilateral hip disability, and bilateral knee disability. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner(s) in conjunction with the examination.  All necessary testing should be accomplished, as appropriate.

The examiner(s) should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any back disability, respiratory disability, CTS, heart disability, fibromyalgia, bilateral hip disability, and bilateral knee disability diagnosed during the pendency of this claim, to specifically include the diagnoses outlined above, had their onset in service or are otherwise etiologically related to service, to include conceded asbestos exposure. 

A full and complete rationale for all opinions expressed must be provided. 

If the examiner(s) is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011).

3. Upon completion of the examination(s) ordered above, review the reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board.

4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case, and afford a reasonable opportunity for response.

 

 MICHAEL A. PAPPAS

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	R.M.K., Counsel