Citation Nr: 1120467 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 09-11 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for tuberculosis (TB). 2. Entitlement to service connection for chronic obstructive pulmonary disease. 3. Entitlement to service connection for scarring of the lungs. REPRESENTATION Appellant represented by: Utah Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from July 1956 until August 1970. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The issues of service connection for chronic obstructive pulmonary disease and scarring of the lungs 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. Service treatment records show no diagnosis of active tuberculosis. Chest x-rays in service were negative for abnormalities. 2. The appellant underwent prophylactic treatment from 1970 to 1972 for tuberculosis based on his positive exposure to an active tuberculin case while on active duty in 1970. 3. Active tuberculosis is not shown within the 3 years after service discharge. CONCLUSIONS OF LAW Active tuberculosis was not incurred in or aggravated by servi9ce and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.371, 3.374 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b). Notice should be provided at the time that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) at 119 (2004). This timing requirement applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. Here, the Board finds that VA satisfied its duty to notify. In April 2007, VA sent to the appellant a VCAA letter that essentially complied with statutory notice requirements as outlined above. VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. VA notified the appellant of the requirements for service connection on direct basis and secondary basis. Also, VA notified him of the disability rating and effective date elements of his claim. The above notice was given prior to the initial adverse rating decision. VA has further satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent records have been obtained and associated with the claims folder, to include service treatment records, service personnel records, and VA treatment records. VA afforded the appellant an opportunity to appear for a hearing and he testified before the undersigned VLJ in September 2009. It is noted the Veterans Law Judge explained to the appellant the types of evidence he should submit in support of his claim and that medical evidence was the better evidence in this case. The Veterans Law Judge explained that the appellant needed evidence establishing a link between active military service and his current diagnosis for chronic obstructive pulmonary disease and the findings for scarring of lung tissue. The Veterans Law Judge held the record open for an additional 30 days so that the appellant could obtain nexus-type evidence. No additional evidence has been received by VA in support of the claim following the hearing, except that requested by the Board on remand. The actions of the VLJ supplements VCAA and complied with 38 C.F.R. § 3.103. In some circumstances, VA's duty to assist requires that VA obtain a VA examination and/or medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004). In this case, a VA examination has not been conducted. The Board finds that an examination and/or opinion is not required. This is because the evidence shows no indication of active tuberculosis in service or within the 3 years after service discharge. In fact, there is no evidence of the appellant having ever had active tuberculosis. Rather, the evidence shows that he had exposure to an individual diagnosed with active tuberculosis. These are not equivalents. Since active tuberculosis is not shown, it would serve no useful purpose to obtain a VA medical opinion on whether any other claimed disorder is secondary to tuberculosis. The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection. The appellant seeks service connection for tuberculosis, chronic obstructive pulmonary disease, and scarring of the lungs. He argues that tuberculosis may be secondary to asbestos exposure in service. He also argues that chronic obstructive pulmonary disease and lung scarring are secondary to tuberculosis and/or asbestos exposure in service. The claims based on asbestos exposure are addressed in the remand portion of this decision, except as otherwise addressed. A. Legal Criteria Initially, the Board notes the appellant does not assert that his claimed problems are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, and specified diseases to include tuberculosis become manifest to a degree of 10 percent within three years from date of separation of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. Evidence of activity on comparative study of x-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by section 3.307(a)(3) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods. 38 C.F.R. § 3.371(a). A diagnosis of pulmonary tuberculosis will be acceptable only when provided in: (1) service department records; (2) VA medical records of examination, observation or treatment; or (3) private physician records on the basis of that physician's examination, observation or treatment of the veteran and where the diagnosis is confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. 38 C.F.R. § 3.374; Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). B. Factual Background Service treatment records reflect normal clinical evaluation of the lungs and chest on service entrance examination dated July 1956. A July 1956 chest x-ray was negative. Photofluorographic examination of the chest in March and August 1958 was negative. Release from active duty examination dated September 1959 reflects normal clinical evaluation of the lungs and chest. A December 1959 reenlistment examination reflects normal clinical evaluation of the lungs and chest. On the accompanying report of medical history, the appellant denied TB and shortness of breath. On examination dated October 1962 and December 1963, clinical evaluation of the lungs and chest was normal. Chest x-ray dated October 1963 was reported normal. April 1966 and May 1967 chest x-rays were normal. On examinations dated April 1968 and February 1969, clinical evaluation of the lungs and chest was normal. The appellant denied TB, asthma, shortness of breath, pain or pressure in chest, and chronic cough on the medical history portion of the examinations. February 1969 and August 1970 chest x-rays were within normal limits. Service discharge examination dated September 1969, examination dated January 1970, and service discharge examination dated August 1970 reflect normal clinical evaluation of the lungs and chest. Service personnel records reflect that the appellant worked as a photographic lab supply officer. His duties included procurement of photographic supplies, maintenance of technical publications library, photographic equipment and consumable materials inventories. He received the National Defense Service Medal. A letter dated September 1970 to the appellant informed him that he had been in contact with a serviceman who had been diagnosed with having active TB. He was advised to seek out medical services. Thereafter, in September 9170, the appellant requested treatment based on this contact with a patient having active TB while on active duty. VA Form 10-7131 dated December 1970 reflects that medical care was authorized for positive reaction to tuberculin test on basis of prima facie evidence of eligibility. VA clinical record dated September 22, 1970 reflects history of contact with an active TB case from January to March 1970. The examiner noted that the appellant was asymptomatic and that there were no positive stain tests. Chest x-ray was "essentially negative." A TB skin test or, otherwise known as PPD test was planned. The diagnosis was "TB contact". He was not admitted for hospitalization. Clinical record dated September 23, 1970, reflects that the appellant had been in contact with an active case of TB, but the appellant was asymptomatic, and has never indicated signs and symptoms of TB or pulmonary disease. Physical exam was negative. The diagnosis was TB contact. Prophylactic INH (isoniazid) was started in September 1970. VA clinical record dated March 1971 shows that the appellant presented for a skin test. Chest x-ray was unchanged. Prophylactic INH was recommended to be continued. The diagnosis was "TBC contact PPD positive (proph INH started Sept. 1970[)]." In September 1971, the appellant presented for routine check-up. Skin test converter was noted along with prophylactic INH since September 1970. Chest x-ray was unchanged from September 1970. There were no chest symptoms. The appellant was advised to follow-up in 6 months. The diagnosis was "TBC contact, PPD positive, on prophylactic INH started Sept. 1970. VA clinical record dated March 1972 shows a diagnosis for "TBC skin test converter (on prophylactic INH)." A September 1972 note reflects no positive cultures or negative cultures. Discontinuation of INH following 2 years treatment was recommended. An October 1972 note reflects no chest symptoms. Chest s-ray was unchanged from September 1972. The diagnosis was skin test converter. VA clinical record dated October 1974 reflects no chest symptoms. Chest x-ray showed no signs of active disease and no significant change from October 1973. The diagnosis was skin test converter. An October 1975 note reflects a diagnosis for skin test converter. Chest x-ray was negative. No interval change from October 1974 was found. There were some minor fibrotic lung changes and apical blebs. In March 2007, the appellant filed VA Form 21-526 seeking compensation for TB, chronic obstructive pulmonary disease secondary to TB, and scar tissue in lungs secondary to TB. He did not identify when disability began or when/where he was treated. "See SMR's" was noted. In section II of that form, the appellant indicated with an "x" that he was exposed to Agent Orange, asbestos, and mustard gas. He also indicated with an "x" in the "no" box that he was not exposed to mustard gas. In section III, as an explanation for how his disabilities are related to military service, the appellant reported that he served aboard the USS Enterprise and USS Lexington while the ships were in the yard for overhaul. VA treatment records dated November 2001 to September 2006 from Loma Linda VA Medical Center are associated with the claims folder. In pertinent part, these records show that the appellant presented in November 2001 at urgent care for difficulty breathing, described as off-and-on for the past year, worsening in past 6 months. By history, he had TB, pneumonia 8 times, chronic bronchitis, whooping cough, and other non-respiratory problems. Also, the appellant had a 20 year history of smoking 1.5 packs per day; he quit smoking 10 years ago. The assessment was chronic obstructive pulmonary disease versus anginal equivalent. A chest x-ray showed flattened diaphragm (read as no infiltrate by radiology). In December 2010, the impression was chronic obstructive pulmonary disease. Subsequently dated notes show a continued assessment for chronic obstructive pulmonary disease, followed by pulmonology. In May 2003, the assessment was severe chronic obstructive pulmonary disease, oxygen dependent, and history of latent TB infection treated. It was noted that a chest x-ray of September 2002 showed fibrolinear scarring in the right upper and left lower lobe, unchanged. Past medical history included pneumonia once. In July 2003, the appellant was seen for acute bronchitis. In a letter prepared by the appellant's cardiologist dated July 2003, it was noted that he was first seen in November 2001. In September 2003, the appellant reported a history of asbestos exposure. No further details were provided. A July 2004 high resolution CT showed severe bilateral pulmonary emphysema and focal atelectasis of the right lower and left lower lobes. In November 2005, a history of chronic obstructive pulmonary disease and exposure to asbestos was noted. A VA radiology report dated March 2004 reflects an impression for mild chronic obstructive pulmonary disease and no acute infiltrates. VA treatment records dated from July 2006 from the VA Southern Nevada Health Care System are associated with the claims folder. Las Vegas VAMC radiology report dated August 2007 reflects an impression for mild to moderate chronic obstructive pulmonary disease and bronchitis. It was noted that there were no prior exams for comparison. Evaluation dated July 2006 reflects that the appellant quit smoking in 1995. By history, he had smoked 4-7 years one pack per day. The impression was chronic obstructive pulmonary disease. A pulmonary function test dated February 2007 reflects moderate airflow limitation. In an April 2008 statement, the appellant reported that he was exposed to asbestos while aboard the USS Lexington that was dry docked in Bremerton Washington. He stated that he worked in spaces where asbestos was being replaced. He further reported exposure to asbestos while on duty with the USS Enterprise. He stated that he was exposed during insulation replacement of photographic equipment and plumbing. The appellant reports that he had active TB, treated at Long Beach VAMC, and that he has been treated for residuals thereof-chronic obstructive pulmonary disease-at Loma Linda VAMC. He stated that he was told his chronic obstructive pulmonary disease was probably due to both of these exposures. At request of the appellant, in August 2008, a VA physician with pulmonary medicine at VA Southern Nevada Health Care System provided a letter. It reflects that the appellant was under Dr. H.D.'s care for respiratory related problems since July 2006 when he was seen for an initial evaluation. The physician noted that the appellant had a history of chronic obstructive pulmonary disease since 1993, history of asbestos exposure during military service, and history of diagnosis and treatment for TB in 1971. He further noted that he had not reviewed the medical records from Long Beach VAMC. In September 2009, the appellant testified at a travel Board hearing that he served 14 years in the US Navy as a photographer and graphic quality controlman. He stated that he attained the rank of Petty Officer First Class. He stated that he was notified by letter dated 1970 that he had been exposed to TB while attending school in Georgia. He stated that he was first treated for TB at VAMC Long Beach in the 1970s and that he had a positive scratch test for active TB, for which doctors had wanted to hospitalize the appellant. He testified that he pleaded not to be hospitalized and he was placed on medication. On questioning, the appellant could not recall whether he actually had an active case of TB and stated that it was probable he had active TB because they wanted to hospitalize him. See Transcript at 5-6. The appellant further testified that he was diagnosed with chronic obstructive pulmonary disease and scarring of the lungs by x-ray. See Transcript at 7-8. The VLJ advised the appellant that evidence of a link between the current disabilities and service was need, and that medical evidence would be the best type of evidence although he was free to submit any and all types of evidence he had in support of his claim. C. Anlaysis The preponderance of the evidence is against service connection for tuberculosis. Tuberculosis, active, is not shown in service or at anytime thereafter. In fact, service treatment records reflect normal clinical evaluation of the lungs and chest on multiple examinations, including on service separation examination dated August 1970. Also, chest x-rays were taken throughout the period of active duty. All were negative for abnormalities. Furthermore, active tuberculosis is not shown within the initial 3 years following service separation or at any time after service. Although the appellant was closely followed for a several years and given prophylactic INH because he had been exposed to a case of active tuberculosis, he was never shown to have tested positive for TB on chest x-ray, skin test, or otherwise.. Lastly, medical records dated more than 30 years after the appellant's prophylactic treatment reflect a history of tuberculosis. However, a physician's transcription of history does not transform this evidence into accurate evidence. See LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). Therefore, this evidence has little probative value. The appellant's claim of asbestos-related injury is addressed in the remand portion of the decision. However, to the extent that the appellant claims to have tuberculosis due to asbestos exposure, the Board finds that this argument lacks merit since he has not been shown to have or had active tuberculosis. Furthermore, it is a well-established medical fact that tuberculosis is caused by a bacterial infection, not the fibrous silicate-based material known commonly as asbestos. The Merck Manuals Online Medical Library, "Tuberculosis (TB)," retrieved May 10, 2011 (http://www.merckmanuals.com/professional/sec14/ch179/ch179b.html), The Center for Disease Control and Prevention, "Tuberculosis (TB)," retrieved May 10, 2011 (http://www.cdc.gov/tb/topic/basics/default.htm); The Mayo Clinic, "Tuberculosis," retrieved May 10, 2011 (http://www.mayoclinic.com/health/tuberculosis/DS00372/DSECTION=causes). Therefore, the claim for service connection for tuberculosis is denied on a direct basis and as secondary to asbestos. The Board has considered the lay evidence, which essentially consists of the appellant's statements and sworn testimony. The Board observes that the appellant was unsure at his hearing whether he had had active tuberculosis and he presumed that he did because, he says, medical personnel in 1970 wanted him hospitalized. In the matter of whether the appellant had active tuberculosis, the Board finds that he is not competent to provide a diagnosis. See.38 C.F.R. § 3.371. Furthermore, the diagnosis of tuberculosis is a complex medical determination beyond the realm of a lay person's observations or expertise. See Jandreau, supra. Thus, while he is competent to report what he has been told or has experienced-such as long-term treatment, he is not competent to provide a diagnosis of active tuberculosis. Therefore, his statements concerning the presence of active tuberculosis have little probative value. Regardless, even if he thinks he was told he had tuberculosis, the medical evidence disclosing that he has never had tuberculosis is far more competent, probative and credible. The Board has further considered the letter by Dr. H.D. dated August 2008. However, this letter does not include a diagnosis for tuberculosis or indicate that the physician reviewed any records showing treatment for active tuberculosis or prophylactic treatment of tuberculosis. Rather, Dr. H.D. indicates only that the appellant gave him a "history" of tuberculosis. Furthermore, this physician does not report that the appellant has any residuals of tuberculosis. Therefore, this letter has little probative value. In view of the above, the weight of the evidence is against the claim. There is no doubt to be resolved. ORDER Service connection for tuberculosis is denied on a direct basis and as secondary to asbestos exposure. REMAND The appellant alleges that he has chronic obstructive pulmonary disease and scarring of lung tissue secondary to in-service asbestos exposure. Specifically, he states that he was exposed to asbestos while aboard the USS Lexington that was dry docked in Bremerton, Washington, noting that he worked in spaces where asbestos was being replaced. He further reported exposure to asbestos while on duty with the USS Enterprise, noting that he was exposed during insulation replacement of photographic equipment and plumbing. The record shows that the appellant worked as a photographic lab supply officer. VA has issued a circular as to claims of service connection for asbestosis or other 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 appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. 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. In this case, the appellant's post service treatment records reflect a diagnosis for chronic obstructive pulmonary disease and findings for scarring of lung tissue. However, the record is devoid of a diagnosis of asbestosis, or a medical opinion linking any current diagnosis or finding to the appellant's period of active duty. Therefore, additional development should be undertaken to verify whether the appellant was exposed to asbestos in service. If asbestos exposure is verified the appellant should be afforded an examination to determine whether his current chronic obstructive pulmonary disease and/or scarring of lung tissue is related to asbestos exposure in service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to verify the appellant's claimed in-service asbestos exposure by contacting the Naval Historical Center, Ships History Branch and the Naval Sea Systems Command or other relevant Department of Defense office, regarding asbestos aboard the ships to which the appellant was assigned. All efforts to obtain these records should be fully documented, and the RO/AMC should request a negative response if records are not available. 2. If, and only if, the evidence obtained by the above searches confirms asbestos exposure during service, the appellant should be scheduled for a VA respiratory examination to determine whether he has a current respiratory or pulmonary disorder, to include chronic obstructive pulmonary disease and scarring of tissue of the lungs, due to exposure to asbestos in service. The examiner should review the claims folder prior to examination. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current lung disorder is related to active service to include exposure to asbestos in service. The examiner should discuss the appellant's Navy service as well as his post-service history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders. 3. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issues remain denied, the appellant and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs