Citation Nr: 1222341 Decision Date: 06/27/12 Archive Date: 07/10/12 DOCKET NO. 09-38 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for adenocarcinoma of the lung, status-post left upper lobectomy, claimed as due to exposure to asbestos and chemicals. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1965 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran seeks service connection for adenocarcinoma of the lung, status-post left upper lobectomy, which he contends was caused by his exposure to asbestos and/or chemicals during service. He asserts such exposure occurred during his service in the Dominican Republic in 1966 when he was assigned duties loading and unloading cargo ships. He also claims he was exposed to asbestos when he was assigned to a motor pool, and his duties included changing brakes. Finally, he claims exposure to hazardous materials when he participated in a rescue mission following an airplane crash in April 1966. A review of the record found that further clarification of the circumstances of the Veteran's service, specifically verification of his claims of asbestos and chemical exposure therein, is necessary. The Veteran's service personnel records show that his duties included being a supply handler in the Dominican Republic with the 105th Transportation Company from April 1966 to September 1966. From June 1967 to March 1968 he was a supply handler and petrol storage specialist at Fort Sill, Oklahoma. An article in the claims file shows that in April 1966 there was a plane crash in Ardmore, Oklahoma, which killed 81 passengers. In May 2011, the Veteran was awarded service connection for posttraumatic stress disorder (PTSD). The RO found that his service personnel records confirmed that he was attached to a Medical Company at Fort Sill at the time of the crash, and conceded that he was exposed to the claimed stressor of assisting in clean-up of the plane crash wreckage. The Veteran has indicated that before service, he worked for Kaiser Steel in California; he denied any asbestos exposure during such employment. BVA Transcript at 4-5. He has indicated that in the 1970s, 1980s, and 1990s he worked as a logger with no asbestos exposure. See VA Form 21-4138 received in January 2004. The record shows that the Veteran had an adenocarcinoma of the lung diagnosed in September 2000 and underwent a left upper lobectomy at the time. The RO has sought information regarding the Veteran's exposure to asbestos. While his service personnel records were obtained, there is no actual service department narrative as to whether or not his duties in service (and verified events therein) would have exposed him to asbestos. Therefore additional development regarding his asbestos/chemical exposure history is required. The most recent VA treatment records associated with the claims folder are dated in September 2010. Any records of pertinent VA treatment since are constructively of record, and must be secured. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, the Veteran has not been afforded a VA Compensation and Pension examination in connection with the instant claim. The etiology of his adenocarcinoma of the lung is unclear. VA hospitalization records dated in September and October 2000 reveal that in addition to any environmental exposures in service he had a 75 pack year history of smoking. The low threshold standard as to when it is necessary to secure a VA examination for a nexus opinion is met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Veteran submitted additional evidence after the August 2009 supplemental statement of the case (SSOC) was issued. Although RO initial consideration of this evidence was waived, on remand the RO will have the opportunity to review it in the first instance (in connection with a merits determination). Accordingly, the case is REMANDED for the following: 1. The RO should arrange for exhaustive development (to include obtaining a statement from the service department) to ascertain whether or not (and if so, to what extent) the Veteran's duties in service/events therein would have exposed him to asbestos and hazardous chemicals (or fumes). He should be asked to provide a listing of his claimed environmental exposures, and the development must encompass verification of each exposure claimed. When the development is completed the RO should make a formal finding (and a listing) regarding the nature and extent of such exposures that are corroborated. 3. The RO should secure for the record updated (since September 2010) copies of all of the Veteran's pertinent VA treatment records. 4. The RO should then arrange for the Veteran to be examined by an appropriate VA physician to ascertain the likely etiology of his lung adenocarcinoma. The Veteran's claims file (to specifically include the RO's list describing the nature and extent of his exposure to asbestos/chemicals/fumes in service) must be reviewed by the examiner in conjunction with the examination. All tests and/or studies deemed necessary must be completed. Based on a review of the record, and examination of the Veteran, the examiner should offer an opinion regarding the likely etiology for the Veteran's lung adenocarcinoma, and specifically whether or not such disease is at least as likely as not (a 50 percent or better probability) related to the Veteran's service/was caused by a corroborated exposure to environmental hazards (including asbestos, petrochemicals, fumes) therein. The examiner must explain the rationale for all opinions. The discussion of rationale must specifically address (with citation to supporting clinical data) whether or not asbestos/chemical exposures are implicated as etiological factors for the Veteran's lung cancer (and if not, identify the more likely etiological factor(s) shown by the record). 5. The RO should review the record and ensure that all development sought is completed. Then the RO should readjudicate the claim. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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) (2011).