BVA9406172 DOCKET NO. 93-00 817 ) DATE ) (RECONSIDERATION) ) ) THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic obstructive pulmonary disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION Service connection for asbestosis and for chronic obstructive pulmonary disease was denied by decision of the Board of Veterans' Appeals (Board) in May 1991. This matter came before the Board on appeal from a rating decision of June 1991, from the Roanoke, Virginia, regional office (RO). The notice of disagreement was received in August 1991, the statement of the case was issued in January 1992, and the substantive appeal was received in January 1992. The veteran appeared at a personal hearing before a hearing officer at the RO in May 1992. A supplemental statement of the case was issued in September 1992. The appeal was received and docketed at the Board in January 1993. It was referred to the appellant's representative throughout the appeal, Disabled American Veterans, and that organization submitted additional written arguments to the Board in January 1993. The Board entered a decision in March 1993. In April 1993, the veteran filed a motion for reconsideration of the March 1993 decision, and the veteran's representative submitted written arguments in support of the motion in May 1993. Reconsideration of the decision was ordered by the authority granted to the Chairman in 38 U.S.C.A. § 7103 (West 1991) in September 1993. Thereafter, the case was referred for appellate consideration by an expanded reconsideration panel. This decision by the Reconsideration Section replaces the decision of March 5, 1993. The veteran has also requested service connection for depression and alcoholism secondary to asbestosis. In view of the following decision, the matter is referred to the RO for initial consideration. In addition, for reasons to be discussed, further action will be required on the issue pertaining to service connection for chronic obstructive pulmonary disease. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he was exposed to asbestos during the 3 years and 8 months he spent in the U.S. Navy, and that he now has lung disease which his doctors have told him results from exposure to asbestos. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for asbestosis. FINDINGS OF FACT 1. The Board denied entitlement to service connection for asbestosis in May 1991. 2. Evidence received since the May 1991 decision is new and material. 3. There is a reasonable probability that the veteran was exposed to asbestos during his period of active duty as a boiler tender. 4. Asbestos-related lung disease cannot be dissociated from presumed in-service asbestos exposure. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for asbestosis is reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). 2. Asbestosis was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim for service connection for asbestos is well-grounded, and that the relevant facts have been properly developed; therefore, the statutory obligation of the Department of Veterans Affairs (VA) to assist in the development of the appellant's claim has been satisfied. 38 U.S.C.A. § 5107(a). As noted above, entitlement to service connection for asbestosis was denied by decision of the Board dated in May 1991. That decision is final. 38 U.S.C.A. §§ 7103, 7104. However, if new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108. Evidence of record at the time of the May 1991 decision included service medical records which showed no indication of chronic lung disease. His separation report showed a rate of "BT3," indicating he was a boiler tender. Statements from the veteran indicated he had several jobs after service until 1984, when he lost a job as a plant manager of a concrete pipe company, which he had held since 1969. A VA examination in June 1989 resulted in a diagnosis of chronic obstructive lung disease. A left pleural plaque, unchanged from 1986, was also shown on X-ray. A VA examination was conducted in July 1990, which noted a history of tobacco abuse and asbestos exposure. Pulmonary function tests showed, in pertinent part, a forced vital capacity (FVC) of 87 percent. Chest X-rays revealed pleural plaques consistent with his asbestos exposure. However, the clinical assessment was that there was no evidence of restriction on the pulmonary function tests to attribute to asbestos exposure. Accordingly, service connection for asbestosis was denied by the Board in May 1991, as not shown by the evidence of record. That decision was supported by the evidence then of record and is final. Evidence received since the May 1991 decision includes VA treatment records dated from 1986 to 1988, as well as records of several VA hospitalizations during 1991 and 1992. A hospitalization from February to March 1991 for chronic obstructive pulmonary disease indicated the veteran was a retired plant manager at a concrete pipe plant. A questionable history of asbestosis was noted. X-rays obtained during a hospitalization from February to March 1991 showed hyperinflated lung fields and were interpreted as consistent with chronic obstructive pulmonary disease, with no air space disease noted. However, abdominal CT scan showed pleural plaques consistent with asbestos exposure. In addition, pulmonary function tests, although primarily showing chronic obstructive pulmonary disease, also showed FVC of 61 percent. The veteran was again hospitalized from September to October 1991, and past medical history included abdominal CT scan pleural plaques consistent with asbestosis. A chest CT scan performed during the hospitalization to evaluate pulmonary nodules showed pleural pericardial plaques. After reviewing the evidence of record, we conclude that the additional evidence is new and material. "New and material evidence" is defined by regulation as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of a claim. 38 C.F.R. § 3.156(a). In this regard, the law provides that service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. It is well established that asbestos-related lung disease does not manifest itself until many years after the exposure. VA Adjudication Procedure Manual, M21-1, Part VI, 7.68(b)(2). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran's claim was denied in May 1991 because asbestosis had not been shown. Evidence submitted in connection with the request to reopen the claim includes CT scan reports documenting the presence of pleural plaques consistent with asbestos exposure, as well as pulmonary function tests of February 1991 which document a restrictive element of lung disease not shown previously. Specifically, the July 1990 pulmonary function tests showed FVC of 87 percent, while the February 1991 pulmonary function tests resulted in FVC of 61 percent. This new evidence, in our view, is so significant that it must be considered in order to fairly decide the merits of the claim; accordingly, pursuant to 38 C.F.R. § 3.156, the evidence is material. Therefore, the claim for service connection for asbestosis is reopened. 38 U.S.C.A. § 5108. Hence, the Board is compelled to review all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 140 (1991). The veteran has been afforded an opportunity to appear at a hearing, and his contentions and evidence submissions have been focused on the merits of the claim. Therefore, we do not believe the appellant will be prejudiced by our deciding the case at this time on the merits. Bernard v. Brown, 4 Vet.App. 384 (1993). A diagnosis of asbestosis, also known as interstitial pulmonary fibrosis, requires a history of exposure in addition to X-ray evidence of parenchymal lung disease. M21-1, Part VI, 7.68(a)(1) and (c). The veteran served in the U.S. Navy during the Korean conflict, and his separation record shows his rate was boiler tender, an occupational specialty associated with significant asbestos exposure. In addition, he has testified that he was exposed to asbestos while on board ship in service. Although parenchymal lung disease has not been shown, CT scans of both the chest and abdomen have documented pleural plaques consistent with asbestos exposure. The hospitalization from September to October 1991 noted a history of a CT scan showing pleural plaques consistent with "asbestosis." In addition, the most recent pulmonary function tests of record, performed in February 1991, disclosed a restrictive component to the veteran's primarily obstructive lung disease that was not previously demonstrated. Thus, in view of the credible history of inservice asbestos exposure, when considered together with the documented lung abnormalities consistent with asbestos exposure, we are of the opinion that the evidence supports a grant of service connection for asbestosis. ORDER Service connection for asbestosis is granted. REMAND Because we have determined that asbestosis is service-connected, the issue of whether new and material evidence has been received to reopen a claim for service connection for chronic obstructive pulmonary disease must be referred to the RO for consideration in light of this determination. See, Bernard v. Brown, 4 Vet.App. 384 (1993). The RO must also consider the issue of whether chronic obstructive pulmonary disease is secondary to asbestosis, and, in order to make such a determination, the veteran should be examined to obtain a medical opinion as to whether an etiological connection between asbestosis and chronic obstructive pulmonary disease exists. Moore v. Derwinski, 1 Vet.App. 401 (1991). Accordingly, this case is REMANDED for the following: 1. The veteran should be scheduled for a pulmonary examination to determine whether and, if so, to what extent chronic obstructive pulmonary disease is related to service-connected asbestosis. All indicated studies should be performed. The examiner should be asked to express an opinion as to whether an etiological connection exists, and to provide reasons for the conclusion(s) reached. In order to facilitate the examiner's review of the veteran's history, the claims folder must be made available prior to the examination. 2. Thereafter, the RO should evaluate the veteran's claim as to whether new and material evidence has been received to reopen a claim for entitlement to service connection for chronic obstructive pulmonary disease, and, if so, the case should be addressed on the merits. If the decision at any stage remains adverse to the veteran, he should be furnished a supplemental statement of the case which provides a relevant discussion and citation to the appropriate law and regulations. After completion of the requested development, the veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 ________________________ _________________________ W. H. YEAGER, JR., MD. C. P. RUSSELL _____________________ JACK W. BLASINGAME ________________________ _________________________ M. SABULSKY HARRY M. McALLISTER, MD. _____________________ J. U. JOHNSON NOTICE OF APPELLATE RIGHTS: Regarding the issue of service connection for asbestosis, under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Regarding the issue of whether new and material evidence has been received to reopen a claim for service connection for chronic obstructive pulmonary disease, under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1992).