Citation Nr: 1125486 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 07-24 463A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for heart disease, to include as being due to asbestos exposure and/or herbicides. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as being due to asbestos exposure and/or herbicides. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from June 1965 to September 1968, and served in the Naval Reserve from March 1970 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in Jackson, Mississippi, denying the claims currently on appeal. The issues of entitlement to service connection for heart disease and COPD, to include as being due to asbestos exposure and/or herbicides 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 bilateral hearing loss did not manifest during, or as a result of, active military or Reserve service. 2. The Veteran has not been diagnosed with tinnitus. CONCLUSION OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2010). 2. The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. 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 of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Here, the duty to notify was satisfied by way of letters sent to the Veteran in March 2006 and April 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and information in his possession to the RO. Finally, the letters also provided the Veteran with the Dingess requirements noted above. 9 Vet. App. 473 (2006). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical and personnel records. Also, the Veteran received a VA medical examination in December 2008, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA and private treatment records. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in the line of duty. 38 U.S.C.A. 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is full- time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for ninety days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination 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, 1137; 38 C.F.R. §§ 3.307, 3.309 (2010). However, presumptive periods do not apply for either ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. However, as outlined below, the preponderance of the evidence of record demonstrates that this disability did not manifest during, or as a result of, active military service. As such, service connection is not warranted. The Veteran's service treatment records do not demonstrate that he suffered from bilateral hearing loss during active duty. There are no complaints, treatments, and/or diagnosis for bilateral hearing within the Veteran service treatment records (which includes records from his ACDUTRA period from March 1970 to April 1970). In addition, while audiometric testing was not performed at the Veteran's September 1968 separation examination, both ears were reported as normal and no hearing loss was reported or diagnosed. Post-service treatment records revealed the Veteran currently suffers from bilateral hearing loss. The earliest medical evidence of record demonstrating that the Veteran suffered from hearing loss is noted in a March 2006 audiological evaluation at the VA medical center where the Veteran reported he was last tested at the Gulfport Audiology Clinic in August 2000 but that these records were lost during Hurricane Katrina. According to this record, the Veteran suffered from diminished hearing and was considered a good candidate for a hearing aid in the "right ear only and meets the criteria for VA eligibility." Subsequent VA treatment records demonstrate that the Veteran continued to be diagnosed with diminished hearing. None of these records relate the Veteran's hearing loss to military service. The Veteran was afforded a VA audiometric examination in December 2008 where he reported a "gradual decrease in hearing that he first noticed in 2000." The Veteran described his military noise exposure from "[a]rtillery, heavy equipment, weapons, diesel engines, explosives, power tools/chain saws, radar/radio noise, and torpedoes with [hearing protection devices] not worn." He did not report any post-service load noise exposure. An audiological evaluation was performed, revealing pure tone thresholds, in decibels, to be: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 60 55 75 LEFT 40 35 40 - 55 Speech audiometry revealed speech recognition ability of 96 percent in both the right and left ear. The VA audiologist reported that the Veteran had "mild (26-40 HL) to profound (90+ HL)" in the right ear and "mild (26-40 HL) to severe (70-89 HL)" in the left ear. For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2010). Therefore, the evidence of record clearly establishes that the Veteran currently suffers from bilateral hearing loss. However, upon physical examination, the VA examiner reported that the "[r]esponses were inconsistent; [the Veteran] was reinstructed several times and remained inconsistent. Ascending vs. descending approaches were not in agreement with only fair [speech recognition threshold]/[puretone average] agreement." Furthermore, the VA examiner noted that the "[e]ntrance exam showed hearing within normal limits]. Exam during military career showed hearing [within normal limits] with a threshold shift noted. Exit exam was a whisper test, which is not valid for comparison purposes." Therefore, the VA examiner stated that an opinion whether the Veteran's hearing loss is etiologically related to his military service could not be resolved without resorting to mere speculation. The Board is unable to grant a claim based on speculation. See 38 C.F.R. § 3.102 (distinguishing reasonable doubt from pure speculation or remote possibility); Slater v. Principi, 4 Vet. App. 43, 44 (1993) (upholding Board's rejection of a medical nexus opinion that was based on speculation). However, it is pointed out that when an examiner is asked to render an etiology opinion determines that she cannot do so without resorting to speculation, the Board may not rely on such an opinion unless the record in its entirety-including the examination and the opinion itself-shows that "the examiner [did] not invoke[ ] the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts." Jones v. Shinseki, 23 Vet. App. 382 (2010). In other words, "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id. at 8. "Thus, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must be otherwise apparent in the Board's review of the evidence." Id. at 9. "In certain cases, no medical expert can assess the likelihood that a condition was due to an in- service event or disease, because information that could only have been collected in service, or soon thereafter, is missing, or the time for obtaining other information has passed." Id. at 10. In this case, the Board finds that all available, pertinent medical information was presented to, and considered by, the VA examiner. The examiner conducted a thorough examination of the Veteran and reviewed the Veteran's lay statements regarding his hearing loss, as well as the claims folder. The preponderance of the above evidence demonstrates that the Veteran's bilateral hearing loss did not manifest during, or as a result of, active military service. There was no evidence of hearing loss during service and the Veteran has indicated that his hearing loss did not begin until 2000. This is, at best, thirty-two years after the Veteran's separation from active duty and thirty years after completion of his ACDUTRA. The United States Court of Appeals for the Federal Circuit has determined that a lapse of time is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). The Board recognizes that the Veteran believes his bilateral hearing loss is related to noise exposure during military service. However, the record does not contain any evidence suggesting that the Veteran is competent to offer such a medical opinion. Routen v. Brown, 10 Vet. App. 183, 186 (1997); Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). While the Veteran is competent to testify to symptoms such as hearing loss, he has not indicated that his hearing loss actually began during active service. Rather, the Veteran has routinely suggested that he feels that his conditions started because of military service. Furthermore, he indicated during his December 2008 VA examination that his actual hearing loss did not begin until 2000. This demonstrates that the Veteran did not suffer from bilateral hearing loss during military service, or within one year of his separation from service. Although the Board is sympathetic to the Veteran's claim and appreciates his honorable service, the evidence for the Veteran's claim is outweighed by the countervailing evidence. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Consequently, in light of the lack of competent evidence supporting the claim, service connection must be denied as to bilateral hearing loss. Tinnitus The Veteran contends that he is entitled to service connection for tinnitus. However, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from tinnitus. As such, service connection is not warranted. The record contains a number of VA audiometric treatment records and indicates he suffered from mild to moderate sensorineural hearing loss in both ears. There was no mention of tinnitus until the December 2008 VA examination. Furthermore, none of the records within the claims file reflect that the Veteran suffered from tinnitus. The Veteran was afforded a VA audiometric examination in December 2008. During the examination, the Veteran complained of bilateral hearing loss since 2000. The Veteran did not complain of tinnitus at this time, and no diagnosis of tinnitus was assigned. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for tinnitus. There is no medical evidence of record diagnosing this disability. There must be a current diagnosis of a disorder for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999). Without a medical diagnosis of tinnitus, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for tinnitus must be denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran contends that he is entitled to service connection for heart disease and COPD, to include as due to exposure to herbicides or asbestos, during his active duty and/or Reserve service. As stated above the Veteran served in the Naval Reserve from March 1970 to April 1970. Furthermore, according to the Veteran's DD 214, his military occupation specialty was an electrical repairman. Based on the reasons discussed below, the Board finds further development is necessary in order to determine the etiology of his heart disease and COPD, to include whether such is related to his claimed in- service exposure to asbestos and herbicides. The Veteran has testified to such exposure and has provided treatise evidence regarding the possible relationship between asbestos exposure and his heart disease and COPD. As such treatise evidence is speculative in nature and non-specific to the Veteran, the Board finds that he should be afforded a VA examination to determine the etiology of his claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's contention that he was exposed to asbestos during service, there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which 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, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos- Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claims under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further 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. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. The Veteran submitted a statement in October 2009 where he stated he was exposed to asbestos while "pull[ing] electric motors of all types [of] vents, circulator motors and like fixtures with leaking transformers (florescent lights). We repaired them by pulling old winding asbestos strips [and] covers, burning [and] using harsh chemicals. Sometimes, it was hard to breathe. All the asbestos in the air [and] dust in the air." The record indicates the Veteran stationed on board the USS John R. Perry (DE-1034) and the USS Claud Jones (DC-1033). The Veteran and his representative contends he was diagnosed with asbestosis in December 2008. The Board notes that there is a December 2008 report within the record from the Gulfport Memorial Hospital in what appears to be a diagnosis of asbestosis. However, in June 2009 the Veteran underwent a VA examination where the examiner determined there was "[n]o objective findings for asbestosis." Importantly, the Board further notes that the referring physician in the December 2008 Gulfport Memorial Hospital treatment record and the examiner who conducted the June 2009 VA examiner appear to be the same physician. Given this contradiction, clarification and further development is necessary to determine whether the Veteran has been, in fact, exposed to asbestos. Accordingly, an addendum opinion from the June 2009 VA examiner is needed to address this contradiction. Regarding the relationship specifically between COPD and asbestos exposure, given the complexity of this Veteran's particular case, care should be taken to ensure that the appropriate tests are undertaken and the results reviewed by an examiner with the requisite expertise to render an opinion regarding the proper diagnosis and etiology of the Veteran's lung pathology, in accordance with the appropriate VA criteria for addressing such claims. Such examination and review should include examination of this Veteran and review of the claims file by a physician who is a certified "B reader." As a matter of background information, B reader approval is granted to physicians with a valid U.S. state medical license who demonstrate proficiency (via examination) in the classification of chest radiographs for pneumoconioses using the International Labor Office Classification System. It is also used to classify chest radiographs of asbestos- exposed workers governed by the U.S. Department of Labor regulations, and for medical screening, surveillance, research, or compensation programs. See National Institute for Occupational Safety and Health (NIOSH) Website on Safety and Health Topic: Chest Radiography. All required tests, including the use of a B-reader, must be performed in order to render a competent medical opinion. Regarding his claim of herbicide exposure, in the October 2009 statement the Veteran stated that in approximately December 1965, half of all ship he was working with had "dust [and] smoke (Agent Orange) on the ventilating motors." He stated they did not wear any protective masks. In addition, the Veteran stated that around August 1966 he "made approximately at least six port of calls on Midway Island. At that time Midway was a key point for stopping over for transport planes to Southeast Asia. We inquired about all the barrels and they called it defoliating chemicals. I remember seeing skulls all over everything." He further stated that he was exposed to Agent Orange during his time on the USS John R. Perry (DE-1034) and the USS Claud Jones (DC-1033). However, the Board notes that in August 2009 the U.S. Army and Joint Services Records Research Center (JSRRC) determined the Veteran was not exposed to herbicides while stationed aboard these two ships or while visiting different ports during his tour of service in the Pacific Ocean. However, the Veteran also contends he had exposure to herbicides, specifically Agent Orange, while he was stationed at the Gulfport Naval Station in Gulfport, Mississippi. In a November 2009 letter for Senator R. Wicker, the Veteran asserted that during his Reserve service he "ran through Agent Orange dust in Gulfport." The record does not indicate that the RO has taken steps to confirm whether Agent Orange exposure was possible while stationed at Gulfport. This information is crucial in deciding the Veteran's claim, and as such, the Board finds that further efforts must be taken on remand to verify the presence of Agent Orange in Gulfport before a decision is rendered in this case. VA must follow the evidentiary procedures located in the VA Adjudication Procedure Manual (Manual or M21-1MR) that are applicable to the Veteran's claim. See Campbell v. Gover, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated to comply with pertinent Manual provisions and remanding for such compliance); Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to satisfy its duty to assist when it failed to remand for compliance with the evidentiary development called for in M21-1MR). The procedures in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.n apply when the Veteran alleges exposure to herbicides in a location other than Vietnam, Thailand, or the demilitarized zone in Korea. The RO first is directed to ask the Veteran for the approximate dates, location, and nature of his alleged exposure. If the Veteran timely responds within 30 days, then the RO is instructed to email the Veteran's description of his alleged exposure to the Compensation and Pension (C&P) Service and request a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as alleged. If the C&P Service does not confirm that herbicides were used as alleged, or if the Veteran did not provide timely information regarding his exposure, the RO shall refer the case to the Joint Services Records Research Center. M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.n. No indication exists in the claims file that VA attempted to comply with any of these prescribed Manual procedures. The Veteran's claim therefore must be remanded to the RO so that this required evidentiary development may be performed. Regarding the Veteran's allegation that his COPD is related to herbicide exposure in service, although COPD is not one of the disabilities that may be presumptively service-connected if found in a veteran who was exposed to an herbicide agent in service (38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e)), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records relevant to his claim of entitlement to service connection for heart disease and COPD. After securing any necessary authorization from him, obtain all identified, outstanding treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request verification of the Veteran's alleged in-service asbestos exposure aboard the USS John R. Perry (DE-1034) and the USS Claud Jones (DC-1033) from June 1965 to September 1968, by contacting the Naval Historical Center, the Ships History Branch, the Navy Medical Liaison office (Naval Sea Systems Command) or other relevant Department of Defense office. For the Navy Medical Liaison office, please contact them at the following address: Naval Sea Systems Command (SEA 00D), Congressional and Public Affairs Office, 1333 Isaac Hull Avenue SE, Washington Navy Yard, D.C., 20376. Request the appropriate office to verify the alleged sources of exposure, and ask them to indicate whether it was likely that the Veteran was exposed to asbestos in the course of his assigned duties as an electrical repairman. If no such opinion can be given, the service department must so state, and give the reason why. All efforts to obtain this evidence should be fully documented. In this regard, the Board notes that the VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (Sept. 29, 2006). As applicable, these procedures should be followed. 3. Return the claims folder and a complete copy of this REMAND to the examiner who conducted the June 2009 VA examination. In an addendum, the examiner should provide clarification as to whether the Veteran has been diagnosed with asbestosis (rectify the difference between the December 2008 Gulfport memorial Hospital record and the findings during the June 2009 VA examination). The examiner should acknowledge a review of the claims file. A complete rationale for any opinions expressed must be provided. 4. After the completion of the above instructions, the Veteran should then be afforded a VA examination by a pulmonary specialist, who is a certified "B Reader" under NIOSH to determine the current nature and likely etiology of his COPD, or any other lung disability. The claims folder must be made available for review by the examiner in conjunction with the examination. Any indicated studies should be conducted, to include both CT scan and chest X-rays. The examination should also include obtaining a history from the Veteran of his history of asbestos exposure to include during service as an electrical repairman. Based on the examination, review of the record, and a detailed reading of scan and test results, the examiner should provide a medical opinion as to whether or not the Veteran has COPD or any other lung disability due to asbestos exposure, and to provide a definitive diagnosis of the lung disability. The examiner should also identify any non-asbestos related lung disorder found. The examiner in providing this opinion should address the conflicting medical evidence and opinions currently of record, and provide precise reasoning to support his or her opinion that the lung disability is either asbestos related or is not asbestos related. If it is found that the Veteran does have asbestos-related disability, the examiner should further opine whether such disability is, at least as likely as not (50% or greater), related to asbestos exposure in service. The examiner should specifically comment upon the role of any pre or post-service asbestos exposure. The examiner must explain the rationale for all opinions given. If the Veteran is diagnosed with a lung disorder that is not related to asbestos exposure, the examiner should comment as to whether such disability is otherwise at least as likely as not (50% or greater), related to some aspect of the Veteran's period service. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. 5. Comply with the evidentiary development procedures in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.n as cited in the narrative section of this remand regarding the Veteran's claim of herbicide exposure while stationed in Gulfport during his ACDUTRA from March 1970 to April 1970. 6. After the above developments has been completed and all reports associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine whether his currently diagnosed heart disease had its onset (i) in- service, (ii) during any period of ACDUTRA or INACDUTRA, or (ii) during the one-year presumptive period after service, as a result of asbestos and/or herbicide exposure The claims file, to include a copy of this REMAND, must be made available to and be reviewed by the examiner. The examiner is requested take notice of any determination of whether asbestos and herbicide exposure during the Veteran's military service has been confirmed. Any indicated evaluations, studies, and tests should be conducted. The examiner should offer an opinion as to whether it is likely, unlikely, or at least as likely as not that any such disorder is related to the Veteran's military service, to include specifically his claimed in-service asbestos and/or herbicide exposure. In offering any opinion, the examiner must consider the full record, to include all lay statements of record regarding the incurrence of the Veteran's heart disease and the continuity of symptomatology. The rationale for any opinion offered should be provided. 7. Review the Veteran's claims file and undertake any additional development indicated, to include obtaining and associating with the claims file any additional pertinent records identified by the Veteran during the course of this remand. 8. After completion of the above and any additional development deemed necessary, the expanded record should be reviewed and it should be determined if any of the Veteran's claims can be granted. If the claims are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs