Citation Nr: 1048331	
Decision Date: 12/29/10    Archive Date: 01/03/11

DOCKET NO.  09-33 623	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, 
Louisiana


THE ISSUES

1.  Whether new and material evidence has been received to reopen 
a claim for service connection for a back disability.

2.  Entitlement to service connection for prostate cancer, to 
include as due to asbestos exposure.

3.  Entitlement to service connection for a pulmonary disorder, 
to include as due to asbestos exposure.

4.  Entitlement to service connection for a skin disorder, to 
include a rash, red spots, and skin cancer, and to include as due 
to asbestos exposure.

5.  Entitlement to service connection for a back disability.


REPRESENTATION

Veteran represented by:	The American Legion
ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1943 to December 1945, 
and from July 1946 to July 1950.

The Veteran's claims come before the Board of Veterans' Appeals 
(Board) on appeal from a February 2008 rating decision of the 
Department of Veterans Affairs' (VA) Regional Office (RO) in 
Cleveland, Ohio (Tiger Team), that denied the benefits sought on 
appeal.  The RO in New Orleans, Louisiana, is currently handling 
the matter.

In March 2008, VA received the Veteran's Notice of Disagreement 
(NOD) concerning the denial of his claim for service connection 
for posttraumatic stress disorder (PTSD).  However, a rating 
decision subsequently issued in July 2009 granted that claim and 
assigned an initial disability rating of 30 percent, effective 
May 21, 2007.  In August 2009, the Veteran submitted a timely NOD 
appealing the initial disability rating assigned.  In a December 
2009 rating decision, the RO increased the Veteran's service-
connected PTSD to 100 percent disabling, effective May 21, 2007.  
Therefore, the Veteran has been fully granted the benefits sought 
on appeal, and the PTSD claim has been resolved.  See AB v. 
Brown, 6 Vet. App. 35, 38-39 (1993) (indicating the Veteran is 
presumed to be seeking the highest possible rating unless he 
expressly indicates otherwise).

In his August 2009 substantive appeal, the Veteran requested a 
videoconference hearing before a Veterans Law Judge (VLJ) of the 
Board.  In an August 2010 letter, he was notified that his 
hearing had been scheduled for November 9, 2010.  In a subsequent 
October 2010 Report of Contact, the Veteran stated that he wished 
to withdraw his request for a hearing.  So his hearing request is 
considered withdrawn.  38 C.F.R. § 20.704(e) (2010).

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2010).  
38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of (1) entitlement to service connection for prostate 
cancer, (2) entitlement to service connection for a pulmonary 
disorder, (3) entitlement to service connection for a skin 
disorder, and (4) entitlement to service connection for a back 
disability are addressed in the REMAND portion of the decision 
below and are REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's claim for service connection for a back 
disability was previously denied in a March 1948 rating decision.

2.  The evidence pertaining to the Veteran's back disability 
submitted subsequent to the final March 1948 rating decision was 
not previously submitted, bears directly and substantially upon 
the specific matter under consideration, is neither cumulative 
nor redundant, and is so significant that it must be considered 
in order to fairly decide the merits of the claim.


CONCLUSIONS OF LAW

1.  The RO's March 1948 rating decision that denied service 
connection for a back disability is final.  38 U.S.C.A. § 7105 
(West 2002); 38 C.F.R. § 20.1103 (2010).

2.  New and material evidence has been submitted to reopen the 
Veteran's claim for service connection for a back disability.  38 
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 
duty to notify and assist claimants in substantiating a claim for 
VA benefits.  See 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 
3.102, 3.156(a), 3.159, 3.326(a) (2010).  Here, the Board is 
reopening the claim for service connection for a back disability 
and then remanding the claim for further development.  Thus, no 
further discussion of the VCAA is required.

New and Material Evidence

In an April 1946 rating decision, the Veteran was denied service 
connection for a back disability and was advised of his appellate 
rights.  The Veteran was advised that the records did not show 
that he had a back injury at the time of his discharge from the 
military.  The Veteran did not appeal this decision and it became 
final.  

In a March 1948 rating decision, the Veteran was again denied 
service connection for a back disability, and he was advised of 
his appellate rights.  The Veteran was advised that his alleged 
back injury was not shown by the evidence of record.  The Veteran 
did not appeal this decision and it became final.  

In May 2007, the Veteran filed a claim to reopen his previously 
denied claim for service connection for a back disability.  For 
claims such as this received on or after August 29, 2001, a claim 
shall be reopened and reviewed if "new and material" evidence is 
presented or secured with respect to a claim that is final.  
Evidence is considered "new" if it was not of record at the time 
of the last final disallowance of the claim.  "Material" evidence 
is evidence that relates to an unestablished fact necessary to 
substantiate the claim.  New and material evidence can be neither 
cumulative nor redundant of the evidence of record at the time of 
the last prior final denial and must raise a reasonable 
possibility of substantiating the claim.  38 U.S.C.A. § 5108; 38 
C.F.R. § 3.156(a).  In determining whether evidence is new and 
material, the credibility of the evidence is to be presumed.  
Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In this case, private medical records, VA medical records, and 
lay statements have been added to the record since the March 1948 
denial.  This evidence is new because it has not previously been 
submitted.  See Evans v. Brown, 9 Vet. App. 273 (1996) 
(indicating the evidence to be considered in making this new and 
material determination is that added to the record since the last 
final denial on any basis). 

The evidence is also material.  As noted above, a review of the 
March 1948 rating decision reveals that the Veteran's claim for 
service connection appears to have been denied because the back 
injury was not shown by the evidence of record.  The Veteran's 
lay statements indicate that he had back pain in service.  A 
review of the Veteran's service treatment records (STRs) confirm 
that the Veteran had complained of back pain during service at a 
December 1945 separation examination.  The Veteran reported that 
he had been experiencing the back pain for the past year of his 
military service.  This in-service complaint was not noted in the 
previous rating decisions.  This evidence, along with the 
Veteran's competent lay statements of back pain in service, bear 
directly and substantially upon the specific matter under 
consideration and are significant enough that they must be 
considered in order to fairly decide the merits of the claim.  
For these reasons, the Veteran's claim for service connection for 
a back disability is reopened.


ORDER

New and material evidence having been submitted, the Veteran's 
claim for service connection for a back disability is reopened.


REMAND

Inasmuch as the Board regrets the additional delay of this 
matter, a remand is required before the remaining claims can be 
properly adjudicated.  

First, the Veteran indicated that in 1945 he was treated at the 
VA Medical Center (VAMC) in New Orleans, Louisiana, for his 
pulmonary disorder.  Additionally, the Veteran stated that he has 
recently been treated at the VAMC in Slidell, Louisiana, for the 
disorders currently on appeal.  These records are not currently 
in the claims file.  All pertinent records should be obtained and 
added to the claims file.  See 38 U.S.C.A. § 5103A(b) (West 
2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA 
adjudicators are deemed to have constructive notice of VA medical 
records).

Second, in his May 2007 service connection claim, the Veteran 
indicated that he was exposed to asbestos during his military 
service and that this had caused his prostate cancer, pulmonary 
disorder, and skin disorder. 
 
There is no specific statutory guidance with regard to asbestos-
related claims, nor has the Secretary of VA promulgated any 
specific regulations.  However, in 1988, VA issued a circular on 
asbestos-related diseases that provided guidelines for 
considering asbestos compensation claims.  See Department of 
Veterans Benefits, Veterans' Administration, DVB Circular 21-88-
8, Asbestos-Related Diseases (May 11, 1988).  The information and 
instructions contained in the DVB Circular have since been 
included in VA Adjudication Procedure Manual, M21-1MR, part IV, 
subpart ii, chapter 2, section C, paragraph 9 (Jan. 7, 2007) ("VA 
Manual").  The date of this amended material is December 13, 
2005.  Also, an opinion by VA's Office of General Counsel (OGC) 
discussed the proper way of developing asbestos claims.  See 
VAOPGCPREC 4- 2000 (Apr. 13, 2000).

Rating specialists must develop any evidence of asbestos exposure 
before, during, and after service.  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.  M21-1MR, part IV, subpart ii, chapter 2, 
section C, paragraph 9, subsection d.  

The adjudication of a claim for service connection for a disorder 
resulting from asbestos exposure should include a determination 
as to whether: (1) service records demonstrate the Veteran was 
exposed to asbestos during service; (2) development has been 
accomplished sufficiently to determine whether the Veteran was 
exposed to asbestos either before or after service; and (3) a 
relationship exists between exposure to asbestos and the claimed 
disease in light of the latency and exposure factors.  Id. at 
subsection (h).

The Court has held that VA must analyze a Veteran's claim for 
service connection for asbestosis or asbestos-related 
disabilities under the appropriate administrative guidelines.  
Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. 
App. 428 (1993).  If the evidence supports a conclusion that the 
Veteran's current disorder, while caused by asbestos exposure, is 
due to intervening post-service exposure, the opinion must be 
very specific explaining the basis for this finding.  See 
McGinty, 4 Vet. App. at 428.

In this case, the record shows that the RO has not complied with 
M21-1MR procedures.  The Board finds the previous VCAA notice to 
be insufficient in that regard.  The Veteran has not been sent 
the appropriate questionnaire regarding claims of asbestos 
exposure, and the RO has not performed thorough development 
regarding this issue.  The Veteran must be provided these 
additional notices before deciding the prostate cancer, pulmonary 
disorder, and skin disorder claims.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b)(1).

Third, the Veteran's personnel file is not currently in the 
claims file.  The Veteran's personnel file may provide evidence 
regarding whether the Veteran was exposed to asbestos during his 
military service, and is therefore relevant.  The United States 
Court of Appeals for Veterans Claims (the Court) has determined 
that if all relevant personnel records have not been obtained, 
that may be a breach of the duty to assist and grounds for 
remand.  See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. 
Nicholson, 19 Vet. App. 96, 101-03 (2005).  Therefore, the 
Veteran's personnel file should be obtained.

Fourth, in regards to the Veteran's claims for prostate cancer 
and a skin disorder, if the RO/AMC determines that the Veteran 
was exposed to asbestos during his active military service, then 
the RO/AMC should also schedule the Veteran for VA examinations 
to determine if the Veteran's prostate cancer and skin disorder 
are related to this presumed asbestos exposure.  See McLendon v. 
Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 
C.F.R. § 3.159(c)(4).

Finally, in regards to the Veteran's pulmonary disorder and back 
disability claims, the Board finds that VA examinations are 
required before his claims may be addressed.  VA must provide a 
medical examination for a nexus opinion when there is:  (1) 
competent evidence of a current disorder or persistent or 
recurrent symptoms of a disorder, (2) evidence establishing that 
an event, injury, or disease occurred in service or establishing 
certain diseases manifesting during an applicable presumptive 
period for which the claimant qualifies, and (3) an indication 
that the disorder or persistent or recurrent symptoms of a 
disorder may be associated with the Veteran's active military 
service, but there is insufficient competent medical evidence on 
file for the VA to make a decision on the claim.  McLendon, 20 
Vet. App. at 79; see also 38 U.S.C.A. § 5103A(d); 
38 C.F.R. § 3.159(c)(4).

Throughout his appeal, the Veteran has stated that he has a 
current pulmonary disorder and a current back disorder that 
started during his active military service.  The Board finds that 
the Veteran is competent as a layperson to attest to factual 
matters of which he has first-hand knowledge, e.g., back pain and 
breathing problems.  See Washington v. Nicholson, 19 Vet. App. 
362, 368 (2005).  The Federal Circuit has held that lay evidence 
is one type of evidence that must be considered and that 
competent lay evidence can be sufficient in and of itself.  
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  

In regards to in-service incurrences, the Veteran reported back 
pain at his December 1945 military separation examination.  The 
Veteran stated that he had been experiencing back pain for the 
past year.  Additionally, in November 1946, the Veteran was 
treated for an upper respiratory infection.  These complaints are 
documented in the Veteran's STRs. 

Since there is competent lay evidence of current disorders, and 
competent medical and lay evidence of relevant complaints in 
service, medical opinions are needed regarding whether the 
Veteran has a current back disorder and pulmonary disorder, and 
if so, whether they date back to his active military service.  
McLendon, 20 Vet. App. at 79; 38 U.S.C.A. § 5103A(d); 38 C.F.R. 
§ 3.159(c)(4).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2010).  
Expedited handling is requested.)

1.  Obtain all pertinent outpatient treatment 
records from the VAMCs in New Orleans, 
Louisiana, and in Slidell, Louisiana, since 
1945.  

Additionally, the RO/AMC should ensure that 
the Veteran has not been treated by any other 
local VAMCs.

The efforts to obtain these records should be 
documented, and any evidence received in 
response to this request should be associated 
with the claims folder for consideration.  If 
attempts to obtain these records are 
unsuccessful, and further attempts to obtain 
them would be futile, then also document this 
in the file and notify the Veteran 
accordingly.

2.  Send the Veteran VCAA notice under 38 
U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b), that 
includes but is not limited to, an 
explanation as to what information or 
evidence is needed to substantiate a service 
connection claim involving asbestos exposure.

3.  Send the Veteran the appropriate asbestos 
questionnaire and request him to complete and 
return it.  

4.  Obtain the Veteran's service personnel 
file from the National Personnel Records 
Center (NPRC) or from any other source deemed 
appropriate.

The efforts to obtain these records should be 
documented, and any evidence received in 
response to this request should be associated 
with the claims folder for consideration.  If 
attempts to obtain these records are 
unsuccessful, and further attempts to obtain 
them would be futile, then also document this 
in the file and notify the Veteran 
accordingly.

5.  The RO should determine whether or not the 
Veteran's 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 Veteran's claimed diseases.  M21-1MR, 
Part IV, Subpart ii, Chapter 1, Section H, 
Topic 29; DVB Circular 21-88-8, 
Asbestos-Related Diseases (May 11, 1988).

The RO/AMC must then make a specific written 
determination as to whether the Veteran was 
exposed to asbestos before, during, or after 
his military service.  

6.  If the RO/AMC finds that the Veteran was 
exposed to asbestos during his active military 
service, then the RO/AMC should schedule the 
Veteran for a VA skin examination.  

The VA examiner must render a medical nexus 
opinion as to whether it is at least as 
likely as not (a probability of at least 50 
percent or more) that the Veteran has a 
current skin disorder, to include a rash, red 
spots, and skin cancer.

If the answer is yes, the VA examiner must 
also render a medical nexus opinion as to 
whether it is at least as likely as not (a 
probability of at least 50 percent or more) 
that the Veteran's skin disorder is related 
to his active military service, to include 
his presumed asbestos exposure (if the RO 
determines that the Veteran has been exposed 
to asbestos).

The examiner must also consider the Veteran's 
statements regarding the incurrence of his 
skin disorder, in addition to considering the 
Veteran's statements regarding the continuity 
of symptomatology.  Dalton v. Nicholson, 21 
Vet. App. 23 (2007).

The examiner must conduct all diagnostic 
testing and evaluation needed to make this 
important determination.  The claims file, 
including a complete copy of this remand, must 
be made available to the examiner for review 
of the pertinent medical and other history.
A complete rationale must be provided for 
all opinions rendered.  If the examiner 
cannot provide the requested opinion without 
resorting to speculation, he or she should 
expressly indicate this and provide a 
supporting rationale as to why an opinion 
cannot be made without resorting to 
speculation.  

7.  If the RO/AMC finds that the Veteran was 
exposed to asbestos during his active military 
service, then the RO/AMC should schedule the 
Veteran for a VA prostate examination. 

The VA examiner must render a medical nexus 
opinion as to whether it is at least as 
likely as not (a probability of at least 50 
percent or more) that the Veteran's current 
prostate cancer is related to his active 
military service, to include his presumed 
asbestos exposure (if the RO determines that 
the Veteran has been exposed to asbestos).

The examiner must also consider the Veteran's 
statements regarding the incurrence of his 
prostate cancer, in addition to considering 
the Veteran's statements regarding the 
continuity of symptomatology.  Dalton v. 
Nicholson, 21 Vet. App. 23 (2007).

The examiner must conduct all diagnostic 
testing and evaluation needed to make this 
important determination.  The claims file, 
including a complete copy of this remand, must 
be made available to the examiner for review 
of the pertinent medical and other history.

A complete rationale must be provided for 
all opinions rendered.  If the examiner 
cannot provide the requested opinion without 
resorting to speculation, he or she should 
expressly indicate this and provide a 
supporting rationale as to why an opinion 
cannot be made without resorting to 
speculation.  

8.  The RO/AMC should schedule the Veteran for 
a VA respiratory examination. 

The VA examiner must render a medical nexus 
opinion as to whether it is at least as 
likely as not (a probability of at least 50 
percent or more) that the Veteran has a 
current pulmonary disorder.

If the answer is yes, the VA examiner must 
also render a medical nexus opinion as to 
whether it is at least as likely as not (a 
probability of at least 50 percent or more) 
that the Veteran's current pulmonary disorder 
is related to his active military service, to 
include his November 1946 in-service 
treatment for an upper respiratory infection 
and his presumed asbestos exposure (if the RO 
determines that the Veteran has been exposed 
to asbestos).

The examiner must also consider the Veteran's 
statements regarding the incurrence of his 
pulmonary disorder, in addition to 
considering the Veteran's statements 
regarding the continuity of symptomatology.  
Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The examiner must conduct all diagnostic 
testing and evaluation needed to make this 
important determination.  The claims file, 
including a complete copy of this remand, must 
be made available to the examiner for review 
of the pertinent medical and other history.

A complete rationale must be provided for 
all opinions rendered.  If the examiner 
cannot provide the requested opinion without 
resorting to speculation, he or she should 
expressly indicate this and provide a 
supporting rationale as to why an opinion 
cannot be made without resorting to 
speculation.  

9.  The RO/AMC should schedule the Veteran for 
a VA spine examination. 

The VA examiner must render a medical nexus 
opinion as to whether it is at least as 
likely as not (a probability of at least 50 
percent or more) that the Veteran has a 
current back disorder.

If the answer is yes, then the VA examiner 
must also render a medical nexus opinion as 
to whether it is at least as likely as not (a 
probability of at least 50 percent or more) 
that the Veteran's current back disorder is 
related to his active military service, to 
include his December 1945 complaints of back 
pain.

The examiner must also consider the Veteran's 
statements regarding the incurrence of his 
back injury, in addition to considering the 
Veteran's statements regarding the continuity 
of symptomatology.  Dalton v. Nicholson, 21 
Vet. App. 23 (2007).

The examiner must conduct all diagnostic 
testing and evaluation needed to make this 
important determination.  The claims file, 
including a complete copy of this remand, must 
be made available to the examiner for review 
of the pertinent medical and other history.

A complete rationale must be provided for 
all opinions rendered.  If the examiner 
cannot provide the requested opinion without 
resorting to speculation, he or she should 
expressly indicate this and provide a 
supporting rationale as to why an opinion 
cannot be made without resorting to 
speculation.  

10.  The RO/AMC will then review the 
Veteran's claims file and ensure that the 
foregoing development actions have been 
conducted and completed in full, and that no 
other notification or development action, in 
addition to those directed above, is 
required.  If further action is required, it 
should be undertaken prior to further claim 
adjudication.

11.  Readjudicate the Veteran's claims for: 
(1) entitlement to service connection for 
prostate cancer, to include as due to 
asbestos exposure; (2) entitlement to service 
connection for a pulmonary disorder, to 
include as due to asbestos exposure; (3) 
entitlement to service connection for a skin 
disorder, to include a rash, red spots, and 
skin cancer, and to include as due to 
asbestos exposure; and (4) entitlement to 
service connection for a back disability.  If 
the claims remain denied, issue to the 
Veteran a supplemental statement of the case, 
and afford the appropriate period of time 
within which to respond thereto.

The Veteran has the right to submit additional evidence and 
argument on the matters the Board has remanded.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).  These claims 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 2002).




______________________________________________
Jennifer Hwa
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs