Citation Nr: 0413439 Decision Date: 05/26/04 Archive Date: 06/02/04 DOCKET NO. 02-22 031 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for mesothelioma due to in- service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The veteran served on active duty from January 1972 to September 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions by the RO in St. Louis, Missouri, which denied service connection for mesothelioma due to in-service asbestos exposure. A was held before the undersigned Veterans Law Judge in September 2003. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to Board review. Initially, the Board notes that additional pertinent evidence was received from the veteran in December 2003. The veteran did not waive initial RO review of this evidence, and hence such evidence must be considered by the RO prior to appellate review. The veteran contends that he incurred mesothelioma due to in- service asbestos exposure, primarily in his work as a mechanic. Service personnel records reflect that he worked with engines and brake systems, as well as in construction. Post-service medical records reflect that he was diagnosed with a malignant mesothelioma involving the lung parenchyma and chest wall, and underwent surgery for this condition in October 1997. By a statement dated in March 2002, the veteran reported that he was exposed to asbestos during service in 1972 while performing building demolition, and from 1974 to 1975 while working with brake systems. He also reported post-service asbestos exposure at many of his jobs from 1975 to 1997. By a letter dated in December 2001, a private physician, J. E. W., MD, related that he had been asked to write a brief letter regarding the veteran's military and occupational exposure to asbestos in the course of working with brake systems for more than 30 years. He stated, "I can conclude to a reasonable degree of medical certainty that his asbestos exposure was a substantial contributing cause to development of his mesothelioma." A report of a May 2002 VA examination, reflects that the examiner reviewed the claims file and stated, "It is my medical opinion that the patient's asbestos exposure most likely came from working in the automotive brakes business grinding, installing and repairing brakes. The veteran may have had exposure while in the military, but I think the 30 years exposure far outweighs the several years he had in the military." The examination was conducted by a physician's assistant. Due to the nature of the disability involved, the Board finds that an opinion from an appropriate specialist (M. D.). The RO should obtain a medical opinion from a pulmonary specialist regarding the etiology of the veteran's mesothelioma. 38 U.S.C.A. § 5103A(d) (West 2002). In light of the foregoing, the case is remanded to the RO for the following action: 1. The RO should obtain a VA medical opinion by a pulmonary specialist (M.D.) regarding the etiology of the veteran's mesothelioma. The claims file must be provided to the physician. Following the review of the veteran's claims folder, the examiner is requested to render an opinion as to whether it is as likely as not that the veteran's mesothelioma is related to the in-service asbestos exposure, or is otherwise related to service. If the physician determines that a medical examination is necessary prior to providing a medical opinion, such should be performed. The examiner's attention is directed to the December 31, 2001 statement from DR. W. A complete rational for any opinion expressed should be included in the report 2. Thereafter, the RO should readjudicate the veteran's claim for service connection for mesothelioma, to include consideration of all the evidence including that received since the October 2002 statement of the case. If the claim remains denied, the RO should provide the veteran and his representative with a supplemental statement of the case and the opportunity to respond before the case is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2003).