Citation Nr: 1310845 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-00 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for throat cancer, to include cancer of the base of the tongue and of the neck, to include as due to in-service asbestos exposure. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In a letter dated the next day, the RO in Detroit, Michigan informed the Veteran of that decision. [Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the Detroit RO.] In the substantive appeal which was dated in December 2008 and received at the RO in January 2009, the Veteran initially requested a personal hearing before a Veterans Law Judge at the RO. In a separate document dated two weeks later in December 2008 but received at the RO on the same day in January 2009 as the substantive appeal, the Veteran requested a hearing before a local hearing officer at the RO. In a May 2009 letter, the Veteran was notified that a hearing before a local hearing officer at the RO was scheduled for him in June 2009. He failed to report. The Board further acknowledges that, in a February 2010 VA Form 646, the Veteran's representative asserted that the Veteran had failed to report to the hearing "due to medical issues and more than likely being in the hospital." Significantly, however, in March 2010, the Veteran specifically withdrew his hearing request and requested that his file be sent to the Board for adjudication. Accordingly, the Veteran's hearing request is considered withdrawn. 38 C.F.R. §20.704(e) (2012). In February 2011, the Board remanded the appeal to schedule the Veteran for a VA examination to determine the nature and etiology of his throat cancer, to include cancer of the base of the tongue and neck. The Veteran failed to report to his scheduled examination. In January 2012, finding that good cause had been shown as to his failure to report to his scheduled examination, the Board remanded the appeal to schedule him for another examination. Later that month, the Appeals Management Center (AMC) initiated a request to have the Veteran scheduled for a VA examination. However, the Veteran again failed to report to his scheduled examination. The AMC subsequently readjudicated the claim in a March 2012 Supplemental Statement of the case (SSOC). As such, with respect to the January 2012 remand, the Board finds that the AMC completed the development requested and complied with all of the Board's remand instructions-to the extent possible. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran maintains that he developed throat cancer as a result of his asbestos exposure during service. Specifically, he contends that he was exposed to asbestos while serving aboard various naval vessels in service. In a February 2010 statement, the Veteran, through his representative, maintained that he "slept near or around" asbestos while stationed on a naval vessel "while on tour throughout the United States or other terri[t]orial waters of other countries." VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9b notes that inhalation of asbestos fibers can result in cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9d. Some of the major occupations involving exposure to asbestos include work in shipyards, insulation work, manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, as well as military equipment. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9f. Indeed, a high exposure to asbestos and a high prevalence of disease have been shown in insulation and shipyard workers. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9g. The pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules. Further, there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Thus, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). In the current appeal, the Veteran's service treatment records are negative for any findings of, treatment for, or diagnosis of any form of cancer. The November 1965 pre-induction examination report was clear for any significant abnormalities in his mouth, throat, lungs and chest. However, the Veteran did report a history of ear, nose and throat trouble, as well as a history of a chronic cough and cold, shortness of breath, and pain and pressure in his chest. Clinical records dated from January 1966 to November 1968 reflect continual treatment for various respiratory problems, to include a sore throat, chronic cough and chest pain, throughout his years in service. However, there is nothing in the record to show that these respiratory ailments were manifestations of the Veteran's subsequently diagnosed throat cancer. In addition, the clinical evaluation of the Veteran's mouth, throat, lungs and chest was shown to be normal at his October 1969 separation examination. In the currently-appealed February 2008 rating action, the RO conceded the Veteran's in-service exposure to asbestos due to his service aboard "numerous ships." In the subsequent statement of the case, however, the RO noted that "[t]he evidence available for review has not established exposure to asbestos during [the Veteran's] military service." In any event, upon reviewing the Veteran's personnel records, which reflects that he served aboard various naval vessels during his period of active duty, and after resolving all doubt in the Veteran's favor, the Board concludes that the Veteran was exposed to asbestos during his active service. The Veteran's post-service private treatment records reflect that he discovered a large mass on the left side of his neck in July 2000, which was later biopsied and diagnosed as metastatic squamous cell carcinoma. See August 2000 private surgical pathology report. In addition, the Veteran was also diagnosed with squamous cell carcinoma of the base of the tongue. See September 2000 private treatment report. Pending further test results, the Veteran's physician recommended a combined modality approach wherein the Veteran would receive a combination of chemotherapy and radiation therapy for treatment of his condition. Pursuant to the January 2012 remand, the Veteran was scheduled for a VA examination to determine the nature and etiology of his throat cancer. However, he failed to report to his scheduled VA examination. VA regulations provide that individuals for whom an examination has been scheduled are required to report for the examination. 38 C.F.R. § 3.326(a) (2012). When entitlement to a VA benefit cannot be established or confirmed without a current examination or reexamination and a claimant without good cause fails to report for the examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655 (2012). In a December 2012 statement, the Veteran's representative stated that he had spoken with the Veteran and that the Veteran indicated that he was "unable to report [to the examination] due to work commitments" and "expressed his confusion as to the nature and purpose of the requested examination." The representative stated that, after explaining the purpose of the examination, the Veteran expressed "his continuing desire to attend an examination." The Veteran has been advised that his claim may be denied if he fails to report to his scheduled examination. He never asked to be rescheduled or advised VA that he could not report to his scheduled examination prior to that scheduled evaluation. However, given the scheduling conflict with his job and, more importantly, his confusion as to the nature and purpose of the examination, the Board finds that good cause has been shown for his failure to report to his scheduled examination. 38 C.F.R. § 3.655. Thus, he should be scheduled for another VA examination to determine the nature and etiology of his throat condition. Notice as to the date, time and location of this evaluation must be sent to his current mailing address. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent and etiology of the diagnosed squamous cell carcinoma of the base of his tongue and the diagnosed metastatic squamous cell carcinoma of his neck. His claims folder, including a copy of this remand, must be made available to the examiner. A notation to the effect that this review has occurred should be made in the evaluation report. All pertinent pathology should be noted in the evaluation report. The Veteran should be asked to provide specific information as to his history of asbestos exposure before, during, and after service. Then, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the diagnosed squamous cell carcinoma of the base of the tongue and metastatic squamous cell carcinoma of the neck had their clinical onset in service or are otherwise related to active duty, to include his in-service complaints of a sore throat and his conceded in-service exposure to asbestos. If the Veteran is found to have had any pre-service, or post-service, exposure to asbestos, the examiner should discuss the effect(s) of such nonservice-related exposure to asbestos on the Veteran's cancer. If there are other, more likely causes of these disabilities (to include the Veteran's smoking history), such factor(s) should be discussed. A complete rationale for all opinions expressed should be provided. 2. Then, readjudicate the issue of entitlement to service connection for throat cancer, to include cancer of the base of the tongue and of the neck, to include as due to in-service asbestos exposure. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished an SSOC and should be afforded a reasonable opportunity to respond before the record is certified to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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 remanded by the Board or the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).