Citation Nr: 0907847 Decision Date: 03/04/09 Archive Date: 03/12/09 DOCKET NO. 05-39 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a lung disorder, to include as due to herbicide exposure. 2. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 3. Entitlement to service connection for prostate cancer with incontinence and erectile dysfunction, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which denied the claims. The RO in Detroit, Michigan, currently has jurisdiction over the Veteran's VA claims folder. The adjudication of this case was affected by VA administrative action. Specifically, on September 21, 2006, the Secretary of VA imposed a stay at the Board on the adjudication of claims affected by the United States Court of Appeals for Veterans Claims (Court) decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), that reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagreed with the Court's decision in Haas and appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In May 2008, the Federal Circuit reversed the Court, upholding the Board's decision. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The appellant in Haas filed a petition for a writ of certiorari to the Supreme Court, which was denied on January 21, 2009. See Haas v. Peake, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). As a result, the stay was lifted, and the Board will proceed with adjudication of this case. The record reflects the Veteran also perfected an appeal on the denial of service connection for hearing loss and tinnitus. However, service connection was established for those disabilities by an August 2006 rating decision. In view of the foregoing, these issues have been resolved and are not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The record further reflects the Veteran initially requested a hearing before the Board in Washington, DC, as part of his appeal. However, he withdrew this hearing request in March 2007. See 38 C.F.R. § 20.702(e). For the reasons addressed in the REMAND portion of the decision below, the Board finds that additional development is required with respect to the claim of service connection for a lung disorder. Accordingly, this issue will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the issues decided herein have been completed. 2. The Veteran's service treatment records do not reflect that he was treated for or diagnosed with either a chronic skin disorder or prostate cancer while on active duty; he was not treated for either condition within the first post- service year; nor is there competent medical evidence linking the etiology of the current disabilities to active service. 3. Although the Veteran served aboard a United States ship that traveled in waters off the shore of Vietnam during the Vietnam era, the record does not reflect he had actual service or visitation in the Republic of Vietnam during the Vietnam War era, nor does the evidence otherwise show his exposure to Agent Orange or other herbicide during his period of service. 4. The competent medical evidence does not reflect that the Veteran has been diagnosed with chloracne or other acneform diseases consistent with chloracne. CONCLUSIONS OF LAW 1. A skin disorder was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2008). 2. Prostate cancer was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Court has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice by letters dated in April and July 2004, both of which were clearly prior to the March 2005 rating decision that is the subject of this appeal. He was also sent additional notification by a letter dated in March 2006. Taken together, these letters informed the Veteran of what was necessary to substantiate his claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Further, the March 2006 letter included information regarding disability rating(s) and effective date(s) as mandated by the Court's holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the duty to assist the Veteran has been satisfied in this case relative to the issues decided herein. All relevant records are in the claims folder, to include service records, post-service medical records, and records from the Social Security Administration. The Veteran has had the opportunity to present evidence and argument in support of this claims, and nothing reflects he has indicated the existence of any relevant evidence that has not been obtained or requested. As detailed in the Introduction, he withdrew his request for a Board hearing in conjunction with this appeal. Although no VA medical examination was accorded regarding either his skin or prostate cancer claims, for the reasons expressed below the Board finds that no such development is warranted in this case. Consequently, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Initially, the Board observes that the Veteran's service treatment records do not reflect that he was treated for or diagnosed with either a chronic skin disorder or prostate cancer while on active duty. For example, his skin, as well as his anus and rectum, were consistently evaluated as normal on service examinations conducted in October 1963, February 1965, and February 1967. Further, the Veteran did not indicate any such disabilities on Reports of Medical History. Moreover, the post-service medical records contain no findings indicative of treatment for the claimed conditions until years after his separation from service, and there is no competent medical evidence which links the etiology of either disability to service. The Veteran essentially contends that he has a skin disorder and prostate cancer due to herbicide exposure that occurred while on active duty in the Republic of Vietnam. Under the law, if a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996); 68 Fed. Reg. 27,630-27,641 (2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). "Service in the Republic of Vietnam," includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961 and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. Similarly, in another precedent opinion, the VA General Counsel concluded that the term "service in Vietnam" does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace. See VAOPGCPREC 7-93. Again, a showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam. Moreover, the Federal Circuit upheld VA's interpretation in these opinions by its holding in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The evidence of record shows that the Veteran served in the United States Navy during the Vietnam era. His service personnel records indicate that he served aboard the USS Henry W. Tucker. Information regarding the history of this ship, to include a November 2004 response from the United States Navy, indicates that this ship traveled in the contiguous waters off the shores of Vietnam while the Veteran served upon it, and that it provided gunfire support to military forces in South Vietnam. In addition, the Veteran's DD Form 214 reflects that he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. Despite the foregoing, the record does not establish that the Veteran was ever stationed in or visited Vietnam proper. The Veteran maintains that he did participate in operations in Vietnam as part of his duties aboard ship, to include going in-land to obtain mail. However, this assertion is not supported by his service personnel records, nor the information obtained through official channels regarding the history of the USS Henry W. Tucker. The Board acknowledges that the Veteran's representative asserted in a February 2009 statement that no attempt was made to obtain the deck logs for the USS Henry W. Tucker to support the Veteran's assertions. The Board concludes that no such development is required as the information obtained from official sources, including the Navy itself, does not support this assertion. Moreover, the Veteran has provided no specific dates and/or locations in which his purported in-country visits occurred that would make such a search viable. In view of the foregoing, the Board concludes that the Veteran did not have actual service or visitation in the Republic of Vietnam during the Vietnam War era, nor does the evidence otherwise show his exposure to Agent Orange or other herbicide during his period of service. Consequently, the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6)(iii) and 3.309(e) are not applicable to this case. See VAOPGCPREC 27- 97, supra. In summary, there are no in-service findings of either a chronic skin disorder or prostate cancer; the record does not reflect the Veteran was exposed to herbicides while on active duty; and there is no competent medical evidence linking the etiology of either of these claimed disabilities to service. Moreover, the Board concludes that no development on this matter is warranted in this case. In the absence of evidence of in-service incurrence or aggravation of the claimed disabilities, referral of this case for an opinion as to etiology would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical nexus opinion would not be supported by what actually occurred in service. Simply put, there is no relevant complaint or clinical finding for a clinician to link the claimed disabilities to the Veteran's military service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history, and unsupported by clinical findings, is not probative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A medical opinion is inadequate when unsupported by clinical evidence). Therefore, the Board concludes that the preponderance of the evidence is against these claims. The Board further observes that even if the Veteran were presumed to have been exposed to herbicides while on active duty, his skin disorder claim would still be denied. Although the competent medical evidence confirms he has been diagnosed with prostate cancer, the record does not reflect he has been diagnosed with chloracne or other acneform diseases consistent with chloracne. In other words, he has not been diagnosed with a skin disorder that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e). Granted, the Veteran is competent, as a lay person, to describe his visible skin symptomatology. However, he is not competent to provide a medical diagnosis as to such a disorder. As already stated, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. For these reasons, the Board has concluded that the preponderance of the evidence is against the Veteran's claims of service connection for a skin disorder and prostate cancer, to include as due to herbicide exposure. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to these claims must be denied. ORDER Entitlement to service connection for a skin disorder, to include as due to herbicide exposure, is denied. Entitlement to service connection for prostate cancer with incontinence and erectile dysfunction, to include as due to herbicide exposure, is denied. REMAND In regard to the Veteran's lung disorder claim, the Board observes that, as with the other claims discussed above, his service treatment records contain no findings indicative of such a chronic disability while on active duty, the record indicates he was first treated for such a condition years after service, and no competent medical evidence is of record which links the etiology to service. The post-service medical records do include findings of bronchitis, upper respiratory infection, bronchopneumonia, and chronic obstructive pulmonary disease (COPD). However, as with the skin disorder claim, there is no competent medical diagnosis of a chronic lung disorder that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(a). Despite the foregoing, the Board observes that the Veteran has contended, to include in a January 2006 statement, that his lung disorder may also be due to asbestos exposure that occurred while aboard ship. For claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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. VAOPGCPREC 4-00. 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). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period 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). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the record does not reflect that the RO has complied with M21-1 procedures. For example, the Veteran has not been sent the appropriate letter regarding alleged asbestos exposure. In the event that it is determined that the Veteran has a documented history of probable asbestos exposure during service, he should be afforded a VA examination. The examiner should opine if the Veteran currently has a respiratory disability which is attributable to service to include probable asbestos exposure during service. Since an examination may be necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Accordingly, the case is REMANDED for the following action: 1. Please send the Veteran a letter in compliance with DVB Circular and M21-1, Part VI regarding alleged asbestos exposure. 2. Please obtain the names and addresses of all medical care providers who have treated the Veteran for lung problems since November 2005. After securing any necessary release, obtain those records not on file. 3. After completing any additional development deemed necessary, a specific determination should be made as to whether the Veteran has a documented history of probable asbestos exposure while on active duty. This determination must be documented in the claims folder. 4. If it is determined that the Veteran had probable in-service asbestos exposure, he should be scheduled for an examination to determine the current nature and etiology of his purported lung disorder. The claims folder should be made available to the examiner for review of pertinent documents therein in connection with the examination; the examiner must indicate that the claims folder was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. A rationale for any opinion expressed should be provided. Following evaluation of the Veteran, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran currently has a chronic respiratory disability that is attributable to service to include probable asbestos exposure during service. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated. 5. Thereafter, please review the claims folder to ensure that the foregoing requested development has been completed. In particular, if an examination is conducted review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all of the evidence obtained after the issuance of the last SSOC in August 2006, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. 2008). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs