Citation Nr: 1121985 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 09-46 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for metastatic non-small cell adenocarcinoma of the lung. ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty in the Coast Guard from November 1980 to October 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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 contends that his currently diagnosed metastatic non-small cell adenocarcinoma of the lung is the result of in-service exposure to carcinogens including paint, acetone, diesel fuel and asbestos. He indicates that he was assigned work stripping and painting boats as well as lighthouses in the Coast Guard. His DD Form 214 shows that the Veteran did not have a primary specialty number, but that he was a seaman's apprentice. He admits he smoked cigarettes in service, but that he quit shortly after his discharge. There is no specific statutory guidance regarding claims for service connection for asbestosis or other asbestos-related diseases, nor has the Secretary promulgated any regulations in regard to such claims; however, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant'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). With respect to claims for service connection for a disability involving asbestos exposure, VA must make a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not 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. M21-1MR IV.ii.2.C.9.h. Inhalation of asbestos fibers can produce cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). M21- 1MR IV.ii.2.C.9.b. Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR IV.ii.2.C.9.f. Although the November 2009 statement of the case indicates that the Veteran's rank in the Coast Guard carries a minimal probability of exposure to asbestosis, his history of having done work on ships and lighthouses is credible and should be further investigated. VA is required to provide a medical examination when the record of the claim does not contain sufficient medical evidence for VA to adjudicate the claim. See 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). The July 2009 letter from the Veteran's private oncologist etiologically linked the Veteran's lung cancer to in-service exposure to asbestos, as well as paints, diesel fuel and acetone. Although the September 2009 VA examiner addressed whether there was an etiological link between the Veteran's lung cancer and his in-service exposure to paints, acetone and diesel fuels, the examiner did not address whether any possible in-service exposure to asbestos might be etiologically linked to the Veteran's lung cancer. The Board therefore finds that the Veteran should be afforded another VA respiratory examination to determine the current nature, extent and etiology of the Veteran's diagnosed metastatic non-small cell adenocarcinoma of the lung. See 38 U.S.C.A § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to verify the Veteran's claimed in-service asbestos exposure as a seaman's apprentice, painting lighthouses and ships. All efforts to obtain verification should be fully documented and the RO should document any negative responses in the claims file, as well as inform the Veteran of those responses. 2. Should the evidence obtained by the above searches confirm asbestos exposure during service, the Veteran should be provided another VA respiratory examination to determine the etiology of the Veteran's current lung cancer. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. Based on the medical findings and a review of the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's current metastatic non-small cell adenocarcinoma of the lung had its onset in service or is the result exposure to asbestos in service. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be clearly set forth. If the examiner is unable to give an opinion without resorting to speculation, the report should so state. The Veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on this claim. 3. Thereafter, the RO should readjudicate the issue on appeal. If the issue on appeal remains denied, a supplemental statement of the case should be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for further 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. 2010). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2010).