Citation Nr: 0734585 Decision Date: 11/02/07 Archive Date: 11/19/07 DOCKET NO. 05-41 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to radiation and asbestos. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1963 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The veteran has alleged that his prostate cancer is related to occupational and medical exposure to radiation during service. Development has been completed regarding occupational exposure to ionizing radiation and a July 2005 opinion from the Director of VA Compensation and Pension Service concludes that "there is no reasonable possibility that the veteran's prostate cancer resulted from radiation exposure in service." However, service medical records reveal the veteran had several medical x-rays and he has submitted textual evidence indicating that medical x-rays are highly carcinogenic. Development has not been completed regarding whether the veteran's prostate cancer may be related to medical x-rays during service. The veteran has also alleged that his prostate cancer is related to his exposure to asbestos during service. VA Adjudication Procedure Manual Rewrite (M21-1MR) notes that in some circumstances naval service aboard a ship is a risk factor for asbestos exposure. M21-1MR, IV.ii.2.C.9. The record shows that the veteran served aboard the USS Ethan Allen, USS Gato, and USS Permit. He alleges his duty assignments aboard these ships required him to work with asbestos by removing and installing asbestos covered bags of lead shielding around nuclear reactors. He also says that while he was stationed at naval bases in Great Lakes, Illinois and New London, Connecticut, he was involved with cleaning up barracks and buildings that were being disassembled or renovated; this clean up involved handling and breathing asbestos materials and dust. He also reports that he used zinc/asbestos based primers and paints. He was not provided with any type of breathing apparatus or protective gloves when participating in such duties. Service personnel records show the veteran worked as a missile fire control system technician. However, the record fails to specifically identify whether asbestos was present on these ships or at the above noted naval bases at the time the veteran was stationed there and whether his duty assignments exposed him to asbestos. In order to determine whether he was, in fact, exposed to asbestos during service, and if so, the extent of his exposure, the relevant naval records should be requested. The veteran has not been afforded a VA examination to assess the relationship of medical x-rays, asbestos, and zinc to prostate cancer. Under 38 C.F.R. § 3.159(c)(4), a VA medical examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court has held that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, there is a current medical diagnosis of prostate cancer and service medical records showing exposure to medical x-rays and lay testimony describing possible exposure to asbestos and zinc, an indication of a possible relationship between these exposures and service, but insufficient evidence to determine whether prostate cancer is related to exposure to these substances or otherwise related to service. Consequently, a VA examination to obtain a medical opinion is indicated. Additionally, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but was not notified of the criteria for establishing a disability rating or effective dates of awards. Since the case is being remanded anyway, the RO will have the opportunity to correct the notice deficiencies. Accordingly, the case is REMANDED for the following: 1. RO must provide the veteran notice regarding the rating of prostate cancer and effective date of any award as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). 2. The RO should take appropriate action to develop evidence of the veteran's asbestos exposure during service, to specifically include seeking information as to whether or not asbestos was present aboard the USS Ethan Allen, USS Permit, and USS Gato or whether any buildings or barracks at Great Lakes, Illinois or New London, Connecticut constructed of materials containing asbestos were disassembled or renovated during the periods when the veteran served there. 3. The RO should then arrange for the veteran to be examined by an appropriate specialist to determine the nature and etiology of the veteran's prostate cancer. The examiner must review the veteran's claims file in conjunction with the examination. The examiner should express an opinion regarding the likely etiology of the veteran's prostate cancer, and specifically whether it is at least as likely as not related to the veteran's exposure to asbestos, zinc, and/or medical x-rays in service or is otherwise related to service. The examiner must explain the rationale for all opinions given. 4. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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) (2007).