Citation Nr: 0414427 Decision Date: 06/04/04 Archive Date: 06/10/04 DOCKET NO. 03-21 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty in the United States Navy from June 1959 to May 1963. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in January 2003 by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). This case is being remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify the veteran and his representative if further action is required on their part. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and its implementing regulations, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003), are applicable to this appeal. The VCAA and the implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The veteran claims exposure to asbestos in service during his participation in "rehabing" [sic] Navy ships, including the USS Kitty Hawk. Specifically, he argues that he was assigned the tasks of cleaning and painting the ship and that he lived on board the ship during the rehabilitation process. In a July 2003 statement of the case, the RO noted that the Dictionary of American Fighting Ships shows that the USS Kitty Hawk was in the San Francisco, California, naval shipyards from November 1961 to September 1962 for alterations. The veteran's service personnel records show that he was assigned to the USS Kitty Hawk during that period of time. The RO noted that the Naval Sea Systems Command has issued data that a service member with the Navy rating of Seaman had a minimal probability of exposure to asbestos. The veteran's rating was Seaman. He argues that insofar as he was more directly involved in the rehabilitation his exposure was more than minimal. With regard to any post-service exposure to asbestos, the veteran stated to a VA medical examiner in May 2003 that, in his 32 years of work as an electrician for a power and light company, he believed that he had exposure to asbestos. The record also indicates that the veteran used tobacco. Based on the above, further development concerning the nature and extent of the veteran's in-service and post-service exposure to asbestos is warranted. Additionally, the existing medical evidence is inconsistent with respect to whether the veteran in fact meets the criteria for a diagnosis of asbestosis. For example, in December 2001, a private physician reported that a chest X- ray showed findings typical of previous asbestos exposure indicating asbestosis. However, in August 2002, another private physician read a chest X-ray as showing no active lung disease, noting mild chronic interstitial lung changes. Then, a VA examiner in May 2003 found no significant lung disease, but noted morbid obesity as possibly contributing to the veteran's claimed shortness of breath. That examiner also noted the veteran's history of cigarette smoking. Due to the lack of clarity with respect to the existence and etiology of current respiratory disability, the Board finds that VA's duty to assist the veteran requires that he be afforded a pulmonary examination by a physician who will be asked to determine if a diagnosis of asbestosis is appropriate and, if so, offer an opinion as to the likelihood that such asbestosis is related to the veteran's claimed exposure to asbestos in service. Accordingly, this case is REMANDED to the RO for the following: 1. The RO should send the veteran a letter requesting that he provide more detailed information concerning his activities in service involving alteration of ships, to include the USS Kitty Hawk, and his post-service activities as an electrician, as well as any other in-service and/or post-service activities or circumstances that may have involved exposure to asbestos. The veteran should state the nature of the activities, as well as the duration of time he participated in such. 2. The RO should arrange for the veteran to undergo a pulmonary examination by a physician with appropriate training and expertise to determine whether the veteran has asbestosis or other lung disease(s). The claims file MUST be provided to the examiner and review of such should be reflected in the completed examination report. All indicated diagnostic studies should be performed. The examiner is requested to opine whether it is more likely (greater than 50 percent probability) or, less likely (less than 50 percent probability) that asbestosis, if diagnosed, or any other currently diagnosed lung/respiratory disability is related to in-service asbestos exposure or other incident of the veteran's active service. A rationale should be provided for the opinion expressed, to include any inability to provide the requested opinion. 3. After all indicated development has been satisfactorily completed, the RO should re-adjudicate the veteran's claim based on a consideration of all of the evidence of record. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case, to include citation to pertinent laws and regulations and a discussion of how such laws and regulations affect VA's decision. The veteran and his representative should be afforded an opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice. He does, however, have the right to submit additional evidence and argument on the matter the Board has remanded. 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 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 The Veterans Benefits Improvement Act of 1994, Pub. L. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (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. 8.43 and 38.02. _________________________________________________ J. M. Daley 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 your appeal. 38 C.F.R. § 20.1100(b) (2003).