Citation Nr: 0500447 Decision Date: 01/07/05 Archive Date: 01/19/05 DOCKET NO. 03-08 769A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The veteran served on active duty from February 1970 to December 1971. The veteran also had a subsequent period of unverified service in a reserve component. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Baltimore, Maryland. In October 2004, the veteran testified at a hearing before the undersigned. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Consistent with the instructions below VA will notify you of the further action required on your part. REMAND The veteran maintains that his job in the Navy as a shipfitter exposed him to asbestos, and that this exposure caused and/or contributed to his developing lung cancer. Specifically, his job reportedly required him to repair and install steam pipes as well as perform other metal work, without any protective equipment, and that asbestos insulation frequently became airborne and was inhaled by him. It is requested that the veteran be afforded the benefit of the doubt. Service personnel records show the veteran served aboard the U.S.S. Nitro from September 1970 to December 1971. An October 2001 statement from the Navy reported his occupational specialty was shipfitter and ships during the time period he served "required heated surfaces to be covered with an insulating material and it is highly probable that asbestos products were used . . ." The VA Adjudication Procedure Manual (M21-1) provides that asbestos exposure is a contributing factor for lung cancer (see M21-1, Part VI, par. 7.21(a)(1) & (2)), and reports that in some circumstances naval service aboard ship is a risk factor for asbestos exposure (see M21-1, Part VI, par. 7.21(b)(2)). The Manual further provides that exposure to asbestos may cause illness even when the exposure period was as little as a month or two or the veteran only had indirect exposure (see M21-1, Part III, par. 5.13(a)), and provides that the latent period varies from ten to forty-five or more years between first exposure and development of disease (id.). Beginning in September 2000, the post-service record includes competent medical evidence of the veteran having lung cancer diagnosed as limited stage small cell carcinoma of the left hilum/lingular lobe status post radiation and chemotherapy. See private treatment records from Heather A. Curry, M.D., dated from September 2000 to February 2001; chest x-ray dated in January 2001; and letter from Jerrold L. Abraham, M.D., dated in April 2002. Both Dr. Abraham and the May 2003 VA examiner opined that the veteran's in-service asbestos exposure played a roll in his developing lung cancer. The record shows, however, that the veteran had a 30-year history of cigarette smoking, and that he worked post-service in a industry that exposed him to asbestos. Both Dr. Abraham and the May 2003 VA examiner opined that his cigarette smoking and post service asbestos exposure were major factors in his developing lung cancer, with cigarette smoking being the major factor. The May 2003 VA examiner opined that the claimant was exposed to more asbestos in his post-service jobs than in military service. M21-1, Part VI, par. 7.21(a)(3), provides that the risk of developing bronchial cancer is increased in cigarette smokers who were exposed to asbestos. The Court requires VA to take into account the veteran's intervening post-service exposure when adjudicating these types of claims. See McGinty v. Brown, 4 Vet. App. 428 (1993). Therefore, because VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions, Colvin v. Derwinski 1 Vet. App. 171, 175 (1991), and because the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), requires that VA provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim (see 38 U.S.C.A. § 5103A(d) (West 2002)), a remand for a clarifying examination is needed. Lastly, given the above development and VA's duty to notify the veteran of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant, on remand, the RO should continue to provide him with updated VCAA notices. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the appeal is REMANDED for the following: 1. The RO must review the claims file and ensure that all M21-1 development and VCAA notice obligations have been satisfied in accordance with Quartuccio; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159; the Veterans Benefits Act of 2003; and any other applicable legal precedent. a. As to the M21-1 development, such development includes, but is not limited to, the following actions: (1) determining whether military records demonstrate evidence of asbestos exposure in service; (2) determining whether there was pre-service and/or post- service evidence of occupational or other asbestos exposure; and (3) determining if there is a relationship between asbestos exposure and the currently claimed disease in light of the latency and exposure information found at M21-1, Part III, par. 5.13(a). b. As to the VCAA development, such notification includes, but is not limited to, notifying the veteran of the specific evidence needed to substantiate the claim. The RO must provide a letter which: (1) notifies the claimant of the specific information and evidence not of record that is necessary to substantiate the claim; (2) notifies him of the specific information and evidence that VA will seek to provide; (3) notifies him of the specific information and evidence the claimant is expected to provide; and (4) requests that he provide all pertinent evidence in his possession that has yet to be submitted to VA. The veteran should be notified that he has one-year to submit pertinent evidence needed to substantiate his claim. The date of mailing the veteran notice of the VCAA begins the one-year period. 2. After associating with the record all evidence obtained in connection with the above development (to the extent possible), the RO should forward the claims file to the May 2003 VA examiner or, if he is not available, a board certified pulmonologist. Based on a review of the claims folder, the examiner should provide answers to the following questions: a. Assuming that the veteran did not smoke, and that he was not exposed to asbestos post service, is it at least as likely as not that his lung cancer is due solely to any in service asbestos exposure that occurred between February 1970 and December 1971? b. Is it more likely than not that the veteran would have developed lung cancer even if he was never exposed to asbestos in service? c. Is it more likely than not that lung cancer is a result of his post- service smoking and post-service occupational duties with asbestos exposure alone? Note: If the examiner cannot answer the above questions without resorting to speculation, he should say so. 3. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. Thereafter, following any other appropriate development, the RO should readjudicate the issue on appeal in a rating decision. If the benefit sought on appeal remains denied, he and his representative should be provided a Supplemental Statement of the Case which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN 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 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).