Citation Nr: 1319055 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-38 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for lung cancer, to include as due to in-service asbestos exposure, tobacco use, and second-hand cigarette smoke. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1962 to March 1963 and from February 1996 to March 2005. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for lung cancer. In light of statements made by the Veteran in February 2008 and September 2009, and his representative's April 2013 statement, the Board has recharacterized the issue as a claim for service connection for lung cancer, to include as due to in-service asbestos exposure, tobacco use, and second-hand cigarette smoke. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the remaining claim on appeal. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The Veteran contends that his currently diagnosed lung cancer is related to his in-service exposure to asbestos, use of tobacco, and second-hand cigarette smoke. See Veteran's statement dated February 2008 and representative's statement dated April 2013. Post-service treatment records reveal that the Veteran was diagnosed with non-small cell lung cancer in September 2007. In a March 2008 notice letter, the RO requested information from the Veteran regarding his claimed in-service exposure to asbestos. As of the date of the August 2009 statement of the case, the Veteran had not provided any details regarding the claimed in-service asbestos exposure. The RO noted that a review of military records did not establish that his occupational specialty would have resulted in exposure to asbestos. Thereafter, in the September 2009 VA Form 9, the Veteran reported that he was exposed to asbestos in service between 1962 and 1963. Specifically, the Veteran contends that while stationed at Fort Ord, California, he was housed in World War II (WWII) barracks which were insulated with asbestos. The Veteran also claimed that the mitts used to change machine gun barrels also contained asbestos. During his service as the Administrative Supply Technician for different units of the Iowa National Guard, the Veteran stated that some of the armories were insulated (walls and pipes) with asbestos. He also stated that he ordered and delivered supplies to the OMS shops where there was always dust in the air from brakes being blown out and repaired. The Veteran stated that there were many areas where the insulation around pipes was torn and hanging loose. When in Fort McCoy for annual training, the Veteran claims that he was again housed in WWII barracks and exposed to asbestos insulation. The RO has not considered the Veteran's recent contentions regarding exposure to asbestos or undertaken any additional required development to attempt to verify the claimed exposure. See VA Adjudication Procedural Manual, M21-MR1 Iv.ii.2.C.9.h. The Veteran further stated that while in service, he was provided cigarettes and encouraged to smoke. Additionally, smoking was permitted in barracks, mess halls, and offices, and the Veteran contends that he was therefore also exposed to second-hand smoke. Given the Veteran's current diagnosis of lung cancer and his contentions regarding in-service asbestos, tobacco use, and second-hand cigarette smoke exposure, the Board finds that additional development is warranted, to include a VA examination to determine the etiology of the Veteran's lung cancer. VA has a duty to provide a medical examination and opinion when the evidence reflects an in-service event, a current disability and an indication that the current disability may be associated with his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should make the necessary attempts to verify whether the Veteran was exposed to asbestos during service, taking into account his lay statements, service treatment records, service personnel records, and any other relevant documents. If deemed necessary, contact any appropriate agency in order to verify the Veteran's claimed asbestos exposure. 2. Thereafter, schedule the Veteran for a VA medical examination, with an appropriate examiner. The purpose of the examination is to determine the etiology the Veteran's currently diagnosed non-small cell lung cancer. The Veteran's claims files must be made available to the examiner, and the examiner must review the entire claims files in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should interview the Veteran as to his history of exposure to asbestos and second hand cigarette smoke, as well as any tobacco use, both in service and subsequent to service. The examiner must then provide an opinion as to the following: Whether it is at least as likely as not (50 percent or greater probability), that currently diagnosed non-small cell lung cancer had its onset in service, manifested to a compensable degree within one year after discharge in March 2005 or is in any way related to the Veteran's active service, to include: (1) any verified in-service exposure to asbestos; (2) in-service use of tobacco products; and (3) the claimed in-service exposure to second-hand smoke. The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he/she must discuss why an opinion is not possible. 3. Then, the Veteran's claim for service connection for lung cancer, to include as due to asbestos exposure, tobacco use, and second-hand cigarette smoke, must be readjudicated on the basis of all of the evidence of record and all governing legal authority. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a supplemental statement of the case, which includes 38 C.F.R. § 3.310(a). An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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 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). _________________________________________________ K. J. ALIBRANDO 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).