Citation Nr: 9915702 Decision Date: 06/07/99 Archive Date: 06/15/99 DOCKET NO. 95-25 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of asbestos exposure, claimed as asbestosis, stroke, and chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for tobacco dependence and any lung and/or cardiovascular disease as secondary to tobacco dependence. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from April 1954 to April 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 1995 and November 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the above-noted claims. The case was previously before the Board in November 1997, when it was remanded for additional records and compliance with the Privacy Act of 1974. The veteran requested and was scheduled for a personal hearing before a Member of the Board in March 1999; however, he canceled this hearing. REMAND Unfortunately, it is again necessary to remand this claim. The RO sent the veteran's file to the Board in January 1999. The veteran subsequently provided additional relevant evidence, i.e., an April 1999 statement from Craig N. Bash, M.D., directly to the Board in April 1999. The veteran has not waived the RO's consideration of this evidence. To the contrary, his representative has specifically requested that the case be remanded to allow the RO to consider this evidence. Therefore, in accordance with 38 C.F.R. § 20.1304(c), the case is returned to the RO for consideration and the issuance of a supplemental statement of the case. As noted above, in November 1997 the Board remanded this case to the RO. The prior remand specifically instructed the RO to request that the veteran provide a list of those who have treated him for all pulmonary disorder(s) since his separation from service and obtain all records of any treatment reported by the veteran that are not already in the claims file. The RO was also instructed to obtain all legal documents, pleadings, etc., concerning the veteran's civil action against General Electric Company due to exposure to asbestos. Based upon written statements of the veteran dated in December 1997, it appears that this information was requested by the RO. However, there is no letter of record from the RO to the veteran documenting that such requests were made. As the case must be remanded for other reasons, the Board finds that the RO should again request this information from the veteran and document its actions in the claims file. A Board remand confers upon the veteran the right to compliance with the remand orders, and VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Concerning the claim of entitlement to service connection for tobacco dependence and any lung and/or cardiovascular disease as secondary to tobacco dependence, recent legislation was enacted prohibiting service connection for a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during the veteran's service. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685, 865-66 (1998) (to be codified at 38 U.S.C. § 1103). However, new section 1103 applies only to claims filed after June 9, 1998, and does not affect veterans and survivors currently receiving benefits and veterans and survivors who filed claims on or before June 9, 1998, such as in this case. The VA General Counsel has found that under certain circumstances death or disability resulting from the identifiable residuals of disease due to tobacco use during service is compensable under the law governing VA benefits. The opinion does not hold that service connection will be established for a disease related to tobacco use if the affected veteran smoked in service. O.G.C. Prec. Op. 2-93 (Jan. 13, 1993). Rather, it states that any disability related to tobacco use which is not diagnosed until after service would not be precluded from service connection; however, it must be demonstrated that the disability resulted from use of tobacco during service and the possible effect of smoking before or after service must be taken into consideration. Precedent opinions are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991) . A more recent opinion by the VA General Counsel was issued to clarify when service connection may be granted for tobacco- related disability on the basis that such disability is secondary to nicotine dependence which arose from a veteran's tobacco use during service. Specifically, the VA General Counsel found that a determination as to whether service connection for disability or death attributable to tobacco use subsequent to military service should be established on the basis that such tobacco use resulted from nicotine dependence arising in service, and therefore is secondarily service connected pursuant to 38 C.F.R. § 3.310(a), depends upon affirmative answers to the following three questions: (1) whether nicotine dependence may be considered a disease for purposes of the laws governing veterans' benefits; (2) whether the veteran acquired a dependence on nicotine in service; and (3) whether that dependence may be considered the proximate cause of disability or death resulting from the use of tobacco products by the veteran. If each of these three questions is answered in the affirmative, service connection should be established on a secondary basis. VAOPGCPREC 19-97 (May 13, 1997). In view of the foregoing, medical opinions should be obtained on remand in order to determine the date of onset of any nicotine dependence and its relationship with any current pulmonary or cardiovascular diseases. A medical opinion as to the etiology of any asbestosis would also be helpful. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that Board must rely on independent medical evidence to support its findings and must not refute medical evidence in the record with its own unsubstantiated medical conclusions). Finally, there are some additional potentially relevant medical records that the RO should attempt to obtain concerning the veteran's claims. For example, the veteran was employed at Republic Steel Corporation and United States Pipe and Foundry for many years following his separation from active service. It is possible that employment physicals or other medical treatment was provided to the veteran during the course of his employment. The veteran has also reported that he was denied Social Security Administration (SSA) disability benefits on four occasions. It appears that his complete SSA records have not been obtained. Further, the veteran has stated that a VA doctor told him that exposure to asbestos could cause a stroke. Therefore, the RO should make arrangements to obtain these records on remand. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Littke v. Derwinski, 1 Vet. App. 90 (1990); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Accordingly, the case is REMANDED for the following development: 1. Request that the veteran provide a list of those who have treated him for all pulmonary and cardiovascular disorder(s) since his separation from service and obtain all records of any treatment reported by the veteran that are not already in the claims file. With respect to any VA records, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. Associate all records received with the claims file. If requests for any private treatment records are not successful, tell the veteran and his representative so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 CFR § 3.159(c). 2. Request that the veteran provide a written statement from his VA doctor concerning the relationship between exposure to asbestos and strokes. 3. Make arrangements to obtain all legal documents, pleadings, etc., concerning the veteran's civil action against General Electric Company due to exposure to asbestos. The veteran should be advised that the Board is interested in the complete and detailed records pertaining to this action, as opposed to the incomplete RELEASE AND INDEMNITY document already of record. 4. Make arrangements to obtain the veteran's complete employment records, including any medical records, from Republic Steel Corporation and United States Pipe and Foundry. 5. Make the necessary arrangements to obtain a copy of any and all SSA decisions denying or granting disability benefits to the veteran. Obtain all the records from the SSA that were used in considering the veteran's claims for disability benefits, including any reports of subsequent examinations or treatment. If these records are duplicates of those already on file, that fact should be annotated in the claims folder. Any other records should be associated with the claims folder. 6. Afford the veteran a comprehensive VA medical examination(s) by an appropriate examiner(s), i.e., specialists in psychiatry and pulmonary and cardiovascular disorders, if available. The claims folder and a copy of this remand are to be made available to the examiner(s) prior to the examination(s), and the examiner(s) is asked to indicate that he or she has reviewed the claims folder. All tests deemed necessary by the examiner(s) are to be performed. a. The veteran has reported that he began smoking during active service from 1954 to 1956. In March 1982, he stated that he smoked approximately one package of cigarettes a day. In November 1986, he stated that he smoked one package of cigarettes a day and had done so for 32 years. In October 1994, he gave a history of smoking one half of a package of cigarettes a day for the past 20 years. Finally, in February 1995 he gave a history of smoking one half of a package of cigarettes a day for the past six years. What is the likelihood that nicotine-dependence, as the criteria for diagnosing that disorder is set forth in the Diagnostic and Statistical Manual for Mental Disorders (4th ed. rev., 1994) (DSM-IV), was acquired by the veteran during military service? Is nicotine dependence a disease? b. What is the likelihood that the veteran continued using tobacco after service as a result of acquiring nicotine dependence in service? c. If nicotine dependence was acquired during active service, does the evidence show that the veteran sustained full remission of the service-related nicotine dependence and subsequent resumption of the use of tobacco products? d. The examiner(s) is asked to provide accurate diagnoses of all current pulmonary and cardiovascular disorders the veteran has and determine the date of onset and describe the etiology of all such disorders. Is it at least as likely as not that any nicotine dependence acquired in military service (that led to the post-service usage of tobacco) caused or aggravated any current pulmonary and/or cardiovascular disorders, including asbestosis, stroke, COPD, bronchitis, etc. (if present)? Is it at least as likely as not that any inservice asbestos exposure (as opposed to the veteran's extensive post-service exposure to asbestos) resulted in any current pulmonary and/or cardiovascular disorders, including asbestosis, stroke, COPD, bronchitis, etc. (if present)? e. If it is not likely or cannot be said with more than speculation that the veteran acquired nicotine dependence in military service, to what extent did the approximately two years of smoking in service contribute to any current pulmonary and/or cardiovascular disorders as opposed to the many post-service years of smoking? The examiner(s) must provide a comprehensive report(s) including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If further consultation with other specialists is determined to be warranted in order to respond to the foregoing questions, such consultations are to be accomplished prior to completion of the report(s). If opinions on the requested information cannot be stated with certainty, they should be expressed within a range of probability, if possible. If the examiner(s) is (are) only able to theorize or speculate on a given matter, the examiner(s) should so state. 7. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report(s). If the requested examination(s) does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report(s) must be returned for corrective action. 38 C.F.R. § 4.2 (1998); see also Stegall v. West, 11 Vet. App. 268 (1998). 8. Readjudicate the veteran's claims, with application of all appropriate laws and regulations, and any additional information obtained as a result of this remand. If any benefit sought on appeal remains denied, provide the veteran and his representative a supplemental statement of the case, which includes consideration of all medical evidence received since the December 1998 statement of the case, including the April 1999 statement from Craig N. Bash, M.D. Allow an appropriate period of time for response. Then, the claims folder should be returned to the Board for further appellate consideration. The veteran need take no action until he is so informed. He is, however, free to submit additional evidence or argument to the RO on remand. Quarles v. Derwinski, 3 Vet. App. 129 (1992). The purpose of this REMAND is to obtain additional information and to comply with all due process considerations. This claim must be afforded expeditious treatment by the RO. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (Historical and Statutory Notes) (West Supp. 1998). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals 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 Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999). 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) (1998).