Citation Nr: 0701699 Decision Date: 01/22/07 Archive Date: 01/25/07 DOCKET NO. 05-04 035 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to service connection for large cell carcinoma of the lung, status post left upper lobectomy, claimed as due to exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from July 1961 to December 1967. In March 2004, the RO denied service connection for large cell lung cancer, status post left upper lobectomy, to include as due to exposure to asbestos and herbicides. The veteran perfected an appeal of that decision to the Board of Veterans' Appeals (Board). In May 2006, when he appeared for a hearing before the undersigned, the veteran withdrew the claim of service connection as it pertained to exposure to herbicides. 38 C.F.R. § 20.204 (2006). The issue remaining on appeal is as set forth above, on the title page. For the reasons set forth below, this appeal is being REMANDED for additional development. VA will notify the veteran if further action is required on his part. REMAND The veteran has testified that he worked as a heating systems specialist in service. He says that he had to remove, reinstall, and repair asbestos insulation on boilers and steam and hot water pipes as part of his daily work. He says that he had no protective gear and that his work created dust and made him cough on occasion. He believes that he developed large cell carcinoma of the lung as a result of in- service exposure to asbestos. When considering a claim for service connection for asbestos- related disease, VA must determine whether or not service records demonstrate the veteran was exposed to asbestos during service, and must ensure that development is accomplished to determine whether or not the veteran was exposed to asbestos either before or after service. Veterans Benefits Administration Adjudication Procedure Manual M21-1MR (VA Manual M21-1MR), Part IV, Subpart ii, Chapter 2, Section C, para. 9. A determination must then be made as to whether or not a relationship exists between exposure to asbestos and the claimed disease, keeping in mind latency and exposure factors. Id. In general, VA recognizes that thermal insulation and steam pipes for heating units and boilers may contain asbestos; that exposure to asbestos can cause lung cancer; and that the latent period for asbestos-related disease ranges from 10 to 45 years or more. Id. See also VAOPGCPREC 4-2000, 65 Fed. Reg. 33,422 (May 23, 2000). In the present case, the veteran's allegations of in-service exposure to asbestos appear plausible, inasmuch as his service records clearly show that he worked with heating systems during service. The medical evidence demonstrates that he was diagnosed with large cell carcinoma of the lung in 1999, approximately 32 years after his discharge from service, and, as noted above, VA recognizes that exposure to asbestos can cause cancer of the lung. Notably, however, the record also contains evidence that the veteran smoked two packs of cigarettes per day for a period of approximately 40 years, and that he worked extensively in the construction and contracting industry after his separation from service. Thus far, no medical opinion has been obtained as to the relationship between asbestos exposure in service and the veteran's lung cancer, taking into consideration factors such as latency, smoking, and possible post-service exposure. This needs to be accomplished. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006). In May 2005, the veteran reported that he was receiving income from the Social Security Administration (SSA). It is not entirely clear whether the income he is receiving is a disability benefit and, if so, whether he is receiving the benefit as a result of disability due to carcinoma of the lung. This matter should be explored further. 38 C.F.R. § 19.9 (2006). For the reasons stated, this case is REMANDED for the following actions: 1. Ask the veteran to provide releases for any private care providers who may possess new or additional evidence pertinent to his claim, including any new or additional relevant evidence that may have been generated at the Cleveland Clinic since the time that records from that facility were last received in December 2003. If the veteran provides adequate identifying information, and the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 2. Ask the veteran whether the income he is receiving from SSA is a disability benefit and, if so, whether he is receiving the benefit due, at least in part, to disability associated with carcinoma of the lung. 3. If the veteran indicates that the income he is receiving from SSA is a disability benefit and that he is receiving the benefit due, at least in part, to disability associated with carcinoma of the lung, obtain copies of any records pertaining to the veteran's award of SSA disability benefits, to include any medical records considered in making that award. The materials obtained, if any, should be associated with the claims file. 4. After the foregoing development has been completed, arrange to have the veteran scheduled for a pulmonary examination. After examining the veteran, reviewing the claims file, and conducting any testing deemed necessary, the examiner should provide an opinion as to whether the large cell carcinoma of the veteran's lung can in any way be related to the veteran's period of service, to include in-service exposure to asbestos, taking into consideration factors such as latency, smoking, and possible post-service exposure to asbestos. In so doing, the examiner should consider that the veteran worked as a heating systems specialist in service. The examiner should also consider that VA recognizes that thermal insulation and steam pipes for heating units and boilers may contain asbestos; that exposure to asbestos can in some cases produce cancer of lung; and that the latency period for disease can range from 10 to 45 years or more. See VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9. A complete rationale for all opinions should be provided. 5. Thereafter, take adjudicatory action on the claim here in question. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the veteran and his representative. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2006).