Citation Nr: 0814234	
Decision Date: 04/30/08    Archive Date: 05/08/08

DOCKET NO.  06-14 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for asbestosis.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. R. Weaver


INTRODUCTION

The veteran served on active duty from February 1950 to 
September 1954.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2006 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.

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 asserts that he has asbestosis due to asbestos 
exposure in service. Specifically, he claims that he slept 
under an asbestosis covered pipe while aboard the USS 
Kearsarge (CVA-33) and was showered by white particles every 
time he got in or out of his bunk.  He reported that used to 
be a heavy smoker.   After leaving the service, he avers that 
he worked for 25 years in restaurants and 25 years as an auto 
glass installer.  

A July 2007 private medical record indicated the veteran 
currently had suspected underlying asbestosis with 
restrictive lung disease as well as reduced diffusion 
secondary to interstitial lung disease.  

Claims of service connection for asbestosis or other 
asbestos-related diseases must be analyzed under the 
guidelines set forth in Veterans Benefits Administration 
(VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, 
para. 7.21 (January 31, 1997).  See Ennis v. Brown, 4 Vet. 
App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993).  
The Board notes these provisions were rescinded and are now 
found at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 
which became effective on December 13, 2005.  

The guidelines provide, in part, that VA must develop any 
evidence of asbestos exposure before, during and after 
service and determine whether there is a relationship between 
asbestos exposure and the claimed disease, keeping in mind 
the latency period and exposure information.  Ashford v. 
Brown, 10 Vet. App. 120 (1997).  

A medical opinion is also required to determine whether the 
veteran's condition is related to exposure to asbestos in 
service or post-service.  38 U.S.C.A. § 5103A(d) (West 2002); 
38 C.F.R. § 3.159(c)(4) (2007).

In the present case, the required development has not been 
performed.  Hence, a remand is necessary to ensure full 
compliance.  

Accordingly, the case is REMANDED for the following actions:

1.  The RO should take appropriate action 
to develop evidence of the veteran's 
asbestos exposure before, during, and 
after his active service, to specifically 
include seeking information as to whether 
pipes aboard the USS Kearsarge (CVA-33) 
were insulated with materials containing 
asbestos between 1950 and 1954.

2.  The RO should then arrange for the 
veteran to be examined by a pulmonary 
specialist to determine the current 
nature and likely etiology of his suspect 
underlying asbestosis with restrictive 
lung disease as well as reduced diffusion 
secondary to interstitial lung disease.  

His claims folder must be reviewed by the 
examiner in conjunction with the 
examination and any indicated studies 
should be conducted. 

Based on the examination and review of 
the record, the examiner should provide a 
medical opinion as to whether the 
veteran, at least as likely as not, has 
any lung disability due to asbestos 
exposure.  If it is found that the 
veteran does have asbestos-related 
disability, the examiner should further 
opine whether such disability is, at 
least as likely as not, related to 
asbestos exposure in service.  

The examiner should specifically comment 
upon the role of post-service asbestos 
exposure.  The examiner must explain the 
rationale for all opinions given. 

3.  The RO should then readjudicate the 
matter of entitlement to service 
connection for asbestos.  If the claim 
remains denied, the RO should issue an 
appropriate supplemental SOC, and give 
the veteran and his representative the 
opportunity to respond.  The case should 
then be returned to the Board.

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. 2007).



_________________________________________________
L. HOWELL
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) (2007).