Citation Nr: 0706622 Decision Date: 03/07/07 Archive Date: 03/13/07 DOCKET NO. 04-40 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia ISSUE Entitlement to service connection for a lung condition due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Associate Counsel REMAND The veteran had active military service from March 1950 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2006 the veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing at the Atlanta RO. The transcript of that hearing is of record. The veteran seeks service connection for a lung condition that he maintains stems from exposure to asbestos aboard the Navy destroyer U.S.S. Chevaliar during the Korean Conflict. At the December 2006 hearing he testified that he was a Gunner's Mate, and said that "during battle or combat we was on the guns - shooting the guns, loading the guns, handling the empty cartridges from the guns." According to the veteran, he wore asbestos gloves in order to remove hot shell casings from the ship's guns. This assertion is endorsed by his former Gunnery Officer, now deceased, who advised that the veteran "was required to wear asbestos gloves for handling shells." The veteran also reports that he was exposed to asbestos in his sleeping quarters aboard ship. He testified that there were hundreds of asbestos-insulated pipes that ran through the ship's living quarters, and that after bombardments these quarters looked as if it had snowed in them. He testified that the bombarding (firing of the ship's guns) went on constantly during the first two years that he was in Korea. Service department records confirm that the veteran was a Gunner's Mate during the Korean Conflict. The evidence also confirms that the veteran has a lung disorder. VA treatment records confirm that the veteran was hospitalized for the collapse of his right lung in November 2003 at a private hospital and in December 2003 at a VA hospital. According to a VA physician, the veteran's lung disease is consistent with chronic obstructive pulmonary disease from tobacco abuse. However, the veteran maintains that he was told by a private pulmonologist that his pneumothorax was asbestos related. Although this evidence is not of record, the veteran has submitted a statement from a chiropractic physician, who avers that the veteran's present condition "is directly linked to his exposure to asbestos in 1952-1954." According to the chiropractic physician, "bullas" are "directly [linked] to asbestos damage to lungs," and x-rays show that the veteran has "multiple bullas in both lungs." While there are no special statutory or regulatory provisions for claims involving service connection for asbestos-related disease, under VETERAN'S BENEFITS ADMINISTRATION MANUAL, M21-1, Part VI, 7.21, in reviewing claims for service connection, it must be determined whether or not military records demonstrate asbestos exposure in service; whether or not there was asbestos exposure pre-service and post-service; and whether or not there is a relationship between asbestos exposure and the claimed disease. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). In this case, the RO attempted to develop evidence of in- service exposure, but not of any exposure before or after service. The veteran has submitted evidence in support of his assertions of claimed in-service exposure. The veteran has also submitted evidence of a medical nexus, but he has not been afforded a VA examination with etiology opinion based on a complete review of the record. Such an examination is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. The RO should request the veteran to identify all health care providers, including hospitals, that have treated him for his lung condition. The veteran should specifically be requested to provide a mailing address for Dr. Walton (the private pulmonologist consulted in November 2003), and a mailing address for the private hospital patronized by the veteran in November 2003. Even if no additional sources of treatment records are identified, all relevant treatment records compiled since January 2004 by the VAMC patronized by the veteran should be obtained. If no additional records exist the case file should be documented accordingly. 2. The RO should take appropriate action to develop evidence of asbestos exposure before, during, and after the veteran's service. 3. After completion of the foregoing, the veteran should then be scheduled for an examination by an appropriate specialist to ascertain the relationship, if any between his currently diagnosed lung condition and service. The claims folder must be made available to, and reviewed by, the examiner. All indicated tests should be performed, and all findings should be reported in detail. After the examination and review of the file, the examiner is specifically requested to provide an opinion as to whether it is at least as likely as not that the veteran's lung condition is related to service, to include any exposure to asbestos during service. A rationale for this and any other opinion proffered should be set forth in the examination report. The examiner must also reconcile his opinion with any conflicting opinions contained in the record. 4. Thereafter, the RO should readjudicate the veteran's claim. If the benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The veteran has 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. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ M. E. LARKIN Acting 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) (2006).