Citation Nr: 0728441 Decision Date: 09/11/07 Archive Date: 09/25/07 DOCKET NO. 05-25 263A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for squamous cell carcinoma right tonsillar fossa. ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from November 1979 to July 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the veteran's claim for service connection for squamous cell carcinoma right tonsillar fossa. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran claims his squamous cell carcinoma of the right tonsillar fossa is related to asbestos exposure in service. He states that, as a mechanic, he was assigned to removal of clutch disks, which were made of asbestos. He also claims he was assigned to inspect asbestos removal. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See also VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988). A remand is necessary to obtain any military records to verify the veteran's claim of asbestos exposure, and obtain information of civilian asbestos exposure. In October 2003, a VA examiner stated that squamous cell carcinoma of the right tonsillar fossa is usually related to smoking or drinking. It was noted that since the veteran does not smoke or drink, the examiner opined that the cancer's etiology was genetic. The examiner also commented that she was unfamiliar with any source of asbestos exposure and was unable to document his asbestos exposure from records in the claims folder. The veteran submitted three letters from private providers, dated October 2004 and November 2004, which state that his cancer may be the result of a combination of environmental and genetic factors, and that asbestos exposure cannot be dismissed as a potential carcinogen. A new VA examination is necessary to ascertain the relationship of any asbestos exposure and the veteran's current squamous cell carcinoma of the right tonsillar fossa. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when it is necessary to decide the claim). The veteran has not yet been provided with notice regarding the effective date and disability evaluations available when service connection is established for any claimed disability as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the case is REMANDED for the following action: 1. Additional VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must be provided to the veteran, including a description of the provisions of the VCAA, notice of the evidence required to substantiate the claim, and notice of the veteran's responsibilities and VA's responsibilities in developing the evidence, including what evidence the veteran is responsible for obtaining and what evidence VA will obtain, and a request that the veteran provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002 & Supp. 2006). In particular, the notice should advise the veteran that he should provide evidence of in-service asbestos exposure. Ask him to provide a list of the all jobs he has held wherein he was exposed to asbestos. He should detail the circumstances including dates and locations of the exposure in service. His descriptions should include how and when he was exposed, and the names of other service persons who were with him at the time of exposure. He must also provide a complete employment history, pre and post service, and should indicate how long he performed each job. The notice should include an explanation as to the information or evidence needed to determine a disability rating and effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The veteran should be afforded the opportunity to identify any additional relevant evidence which is not yet of record, including private post-service treatment records. 3. A request for additional records related to asbestos exposure, including the veteran's service personnel file, should be submitted to the National Personnel Records Center in St. Louis, Missouri. Records containing information on the veteran's work on clutch disks or in asbestos removal should be requested. These records should be associated with the claims file. If these records cannot be obtained, then evidence of attempts to retrieve these records should be associated with the claims file. 4. Taking into consideration M21-1, Part VI, a determination should be made as to whether the veteran was exposed to asbestos during service. 5. Obtain a VA medical opinion if it is determined that the veteran was exposed to asbestos during service. The claims file must be made available to the physician and the physician indicate in his/her report whether or not the claims file was reviewed. The physician should consider the determination of whether or not the veteran was exposed to asbestos during service. The physician should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the veteran's squamous cell carcinoma of the right tonsillar fossa is related to service, to include asbestos exposure, if he was so exposed. A rationale for any opinion expressed should be provided. Consideration should be given to the VA and private medical opinions contained in the claims file. The examination report should include a summary of the relevant history and any asbestos exposure, prior to, during, and after service. All radiologic reports obtained in conjunction with this examination should be associated with the claims file. 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2006). _________________________________________________ MARJORIE A. AUER 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).