Citation Nr: 0400361 Decision Date: 01/07/04 Archive Date: 01/21/04 DOCKET NO. 03-02 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stanley Grabia, Counsel REMAND The veteran had over 19 years of active military service before he retired in November 1974. He died in November 2001. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from a May 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appellant contends that her husband was exposed to asbestos while serving aboard submarines during his almost 20 years of service, and that the asbestos exposure resulted in his fatal lung cancer. VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21, provides guidance in adjudicating asbestos-related claims. The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. Rating specialists must develop any evidence of asbestos exposure before, during and after service. A determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. M21-1, part VI, para. 7.21(d)(1). There are no post service medical records contained in the file prior to August 2001. The file contains an admission report from the Orlando Regional Medical Center reflecting the veteran's admission to this facility in August 2001. A CT confirmed a probable adenopathy and parenchymal changes in the right upper lobe. The report noted that the veteran had probably been exposed to asbestos while in the Navy. A September 2001 radiology report interpreted by Paul T. Wadina, M.D., reflects that calcified pleural plaques were possibly secondary to previous asbestos exposure. Notations dated in September and October 2001 by Steven W. Mamus, M.D., an oncologist, reflect that the veteran was then hospitalized for lung cancer. After the RO forwarded the claims folder to the Board, a letter from Dr. Mamus was associated with the claims folder. Dr. Mamus noted that the veteran had a prior history of exposure to asbestos while in the Navy. Dr. Mamus included excerpts from articles on asbestos as a carcinogen and provided the following opinion: It is my opinion that asbestos may have played a role in the patient developing and ultimately dying of his lung cancer. It is my opinion, more likely than not, that the asbestos exposure the patient had did play a role in him developing his lung cancer, which ultimately caused his death. The appellant did not waive her right to have this new evidence initially considered by the RO. Accordingly, the Board must remand the case to the RO so that it may consider this new evidence. 38 C.F.R. §§ 19.31, 20.1304; see also Disabled American Veterans v. Secretary of Veterans Affairs, 234 F.3d 682 (Fed. Cir. 2003). The veteran was an ordnance mechanic in the submarine service for almost 20 years. As such he may have been exposed to asbestos and hazardous materials on a regular basis. The RO should contact the Navy Department to obtain information to assist in determining whether the veteran was exposed to asbestos materials when he was a submariner. The Board is also of the opinion that a medical opinion should be obtained as to whether the veteran's death can in any way be attributed to his military service, in particular to asbestos exposure during such service. Accordingly, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action. 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) is completed. In particular, the RO should notify the appellant of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim and which portion of that information and evidence, if any, is to be provided by the appellant and which portion, if any, VA will attempt to obtain on her behalf. 2. The RO should request the Department of Defense or the U.S. Navy to provide information about the duties of the veteran's military occupational specialties, i.e., submariner, ordnance mechanic, and the likelihood that he was exposed to asbestos while performing his military duties. 3. The appellant should be asked to identify all medical care providers who evaluated or treated the veteran for lung disorders since his release from service. The RO should attempt to obtain copies of medical records from all sources identified. In particular, the RO should request copies of pertinent records from Dr. Mamus as well as the final hospitalization report from the Orlando Regional Medical Center, Orlando, Florida. 4. After the above development has been completed to the extent possibly, the RO should arrange to have a pulmonary specialist review the claims folder for purposes of providing an opinion as to whether the veteran's exposure in service to asbestos was a principal or contributory cause of the veteran's death. After reviewing pertinent information in the claims folder, the physician should provide an opinion as to the medical likelihood that the exposure in service to asbestos was the immediate or underlying cause of the veteran's death, or was etiologically related thereto. If it is the physician's opinion that the exposure in service to asbestos was not the immediate or underlying cause of death, and was not etiologically related to the immediate or underlying cause of death, the physician should provide an opinion as to the medical likelihood that the exposure in service to asbestos otherwise contributed substantially or materially to the veteran's death, combined to cause death, or aided or lent assistance to the production of death. The physician should also provide a medical opinion as to the medical probability that the cause of the veteran's death was attributable to the veteran's period of military service. A complete rationale for all opinions should be provided. 5. The RO should then re-adjudicate the appellant's claim, in light of the evidence added to the record since the Statement of the Case. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be given an opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2003) (Historical and Statutory Notes). 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. _________________________________________________ Gary L. Gick 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).