Citation Nr: 1310638 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 12-12 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for post operative residuals of squamous cell carcinoma of the right tonsil with metastasis to cervical lymph node, to include as secondary to herbicide or asbestos exposure (claimed as throat cancer). REPRESENTATION Appellant represented by: Don H. Jorgensen, Attorney at Law ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to March 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has residuals of tonsil cancer due in part to his exposure to asbestos while in service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. 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 have been included in a VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 2, Section C, para. 9. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols of these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1 Part IV, Subpart ii, Chapter 2, Section C, para. 9(b); see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancers, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, that an asbestos-related disease can develop from brief exposure to asbestos. See M21-1 Part IV, Subpart ii, Chapter 2, Section C, para. 9(d). The Board notes that under the provisions of the M21-1 Part IV, Subpart ii, Chapter 2, Section C, para. 9(f), occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Review of the Veteran's service personnel records reveals that his MOS was an auto mechanic. He also submitted a statement indicating that he was repeatedly exposed to asbestos from brake linings. See March 2011 statement. Accordingly, the Board finds that an examination in warranted to obtain an opinion concerning whether the Veteran's current residuals from tonsil cancer are related to service. The Statement of the Case also references that the Veteran is receiving treatment at the VA Medical Center in San Diego. However, there are no VA treatment records in the claims file. On remand, the Agency of Original Jurisdiction (AOJ) should make efforts to obtain all outstanding treatment records at any VA treatment facility. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records. All information which is not duplicative of evidence already received should be associated with the claims file. If the AOJ is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C. § 5103A(b)(2) (West 2002). 2. Schedule the Veteran for an examination with an appropriate, qualified examiner for an examination to determine whether the residuals of his tonsil cancer are the result of any incident of active military duty, to include asbestos exposure. a) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. b) The examiner(s) must conduct any appropriate interviews and clinical testing. c) The examiner should determine whether it is "more likely than not" (meaning likelihood of greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" (meaning that there is less than a 50 percent likelihood), that the Veteran's tonsil cancer and residuals were caused by, or are otherwise related to any incident of active military service, to include asbestos exposure. The examiner should specifically review the following evidence: i) The Veteran's DD-214 indicating his MOS as an auto mechanic. ii) The Veteran's March 2011 statement that he was exposed to asbestos while working on brake linings. iii) The M21-1 Part IV, Subpart ii, Chapter 2, Section C, para. 9 which pertains to asbestos claims. d) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 3. Ensure that all of the foregoing development actions have been completed. If any development is incomplete, take corrective action. This includes ensuring the examination report contains adequate responses to the specific questions asked. 4. Readjudicate the claim for service connection in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. 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. 2012). _________________________________________________ KELLI A. KORDICH Acting 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) (2012).